
Qass. 
Book 



1 V \ ^ 



- 















C Mt ^^ 






TREATISE 



ON THE 



LAW OF THE CHURCH. 



"IDEM REGIMEN EADEM FIDES IDEM SACRAMENTORUM NUMERUS 

EADEMQUE EORUM ADMINISTRANDI FORMA IIDEM ETIAM RITUS 

E.&DEM LEGES EADEM FESTA ET JEJUNIA ; OMNIA DENIQUE 

ADEO HABENTUR, CONSTITUUNTUR, PR^DICANTUR, UT JURE MERI- 
TO PRIMmVA NUNCUPETUR ECCLESIA, ULTIMIS HISCE TEMPORIBUS 

REDIVIVA." 

Epistola Dedicatoria JBeveregii ad Codicem Canonum. 



A 



TREATISE ON THE LAW 



OP THE 



PROTESTANT EPISCOPAL CHURCH 



IN THE 



UNITED STATES 



BY MURRAY HOFFMAN, ESQ, 
ii 



NEW- YORK : 
STANFORD AND SWORDS, 137, BROADWAY. 

1850. 



V 



Entered according to Act of Congress, in the year 1850, by 

STANFORD AND SWORDS, 

In the Clerk's Office of the District Court of the United States for 

the Southern District of New-York. 



HOBART PRESS : 
R. M'GOWN, PRINTER, 
57, ANN-STREET. 



NOTICE. 

The following" work may be considered as complete in it- 
self, although a considerable body of canons and Church sub- 
jects are not discussed. These relate chiefly to the ordering 
of the ministers of the Church, and other analogous topics. 
The author hopes to be able to issue a further volume shortly, 
with an Index to the whole work. 
New- York, Sept. 1850. 



TABLE OF CONTENTS 



INTRODUCTION. 



Of the Law of the Church, - 

Of the Church of England in the Colonies, - 

Identity with the Present Church, - 

Action of the Churches in the States after the Revolution, 

The Church the same in Discipline as in Doctrine after the Revo- 
lution as before, - 

What the English Ecclesiastical Law is, 

Four Important Periods in its History, * 

Application of the Doctrine of the Force of English Law to some 
Particular Cases, ------ 

CHAPTER I. 



PAGE. 
13 

14 

14 

31 



40 
42 

48 

66 



THE CONSTITUTION OF THE CHURCH, AND THE GENERAL CONVENTION. 

PAGE. 

TITLE I. The Constitution— Its History and Construction, 87 

§ 1. Powers of the General Convention, - - 97 

§ 2. Of that of 1789, - 97 

§ 3. Of that Body subsequently, - - - 110 

TITLE II. The Articles of the Constitution, - - 128 

Article I., ----- 128 

§ 1. Of Diocesan and other Councils, - 129 

§ 2. Of Special Meetings of Convention, - 139 

§ 3. Of a Quorum, 140 

Article II., ----- 141 

§ 1. Number of Deputies, - - - 142 

• $ 2. Body to Choose, - - - - 142 

$ 3. Mode of Choosing, 144 

§ 4. Vote by Orders, - - - 149 

§ 5. Case of Absent Delegates, - - 150 



CONTENTS. 



Article III., - 

Article IV., - 

§ 1. Mode of Choice of Bishops, 
f 2. Restrictions of Jurisdiction, 

Article V., - 

Article VI., - 

Article VII., 

Article VIII., - 

Article IX., 

CHAPTER II. 



PAGE. 

152 
155 
155 
158 
159 
163 
166 
167 
172 



OP THE CONSTITUTIONS AND CONVENTIONS OF THE DIOCESES. 

TITLE I. General Objects and Nature of the Constitutions, 179 

TITLE II. Members of Conventions and their Qualifications, 182 

§ 1. Union of Clergy and Laity, - - 184 

§ 2. Settled Clergymen, - - - 185 

§ 3. Missionaries, - 187 

§ 4. Professors, - - - - 187 

§ 5. Chaplains of Army and Navy, - - 188 

§ 6. Residence, - - - - 188 

§ 7. Former members, - - - 189 

$ 8. Lay Delegates — Number and Qualifications, 190 

TITLE III. Evidence of Membership, 192 

$ 1. List of Clergy, - - - - 192 

§ 2. Evidence of Lay Membership, - - 197 

§ 3. Mode of Choosing Lay Delegates, - - 199 

TITLE IV. Officers and Committees of Conventions, - 200 

$ 1. Presiding Officer — His Authority and Duties, 200 

Power on Questions of Order, - - 203 

§ 2. Secretary of Convention, - - 205 

$ 3. Treasurer, - - - - - 207 

§ 4. Standing Committees, - 208 

Origin, 209 

Members, - - - - 212 

Powers and Duties, - :- 213 

§ 5. Committees other than Standing Committee, 219 

TITLE V. Regulations of Legislative Action, - - 221 

§ 1. Quorum, ... 221 

§ 2. Mode of Voting, - - . - 221 



CONTENTS. 

CHAPTER III. 

OF PARISHES THEIR SEPARATION AND DIVISION AND THE 

ORGANIZATION OF CHURCHES OR CONGREGATIONS. 



TITLE I. 



TITLE II. 



TITLE III. 



TITLE IV. 



TITLE V. 



TITLE 
TITLE 



VI. 

VII. 



Ones, and the Buildiug of Churches, 



TITLE I. 



The Building New Churches, - - - 229 

The Organization of Churches, - - 237 

§ 1. Incorporation under Civil Laws, - - 237 

Who may Unite, 238 

First Election, ... - 242 

Notice of First Election, - - 242 

Presiding Officer, ... 243 

Election and Certificate, - - 244 

§2. Articles of Association, ... 245 

§ 3. Subsequent Elections, - 248 

Qualification of Voters, - - 249 

Times of Elections, - - 249 . 

The Vestry as Trustees — Power and Office, - 251 

§ 1. Corporate Character, - - - 251 

§ 2. General Powers, - 252 

§ 3. Alienation, .... 254 

§ 4. Right over Pews, ... - 257 

§ 5. Vaults, .... 258 

§ 6. Tenure of Office, - - - - 259 

§ 7. Meetings of the Vestry. - - 259 

§ 8. Duty as to Account, - - - 260 

The Rector, ----- 262 

$ 1. Right to Preside, - - - - 262 

§ 2. Right to the Glebe, &c, - - 263, 

Wardens and Vestrymen, - 266 

$ 1. Wardens, 267 

§ 2. Vestrymen, ----- 270 

§ 3. Eligibility of Vestrymen, - - 272 

Union of a Church with the Convention, - 272 

Union of a Congregation with One in Another 

Diocese, ----- 277 

CHAPTER IV. 

Election and Institution of Ministers, - - 280 



+- 



i* 



10 



CONTENTS 



TITLE II. 
TITLE III. 
TITLE IV. 
TITLE V. 



PAGE. 

$ 1. The Certificate or Notice of Election, - 281 

§ 2. The Inquiry into the Sufficiency of the Party. 282 

§ 3. The Method of Inquiry, - - 285 

§ 4. Institution or Induction, ... 286 

Of Parochial Instruction, - 294 

Of the Keeping a Parish Register, - - 295 

Duty of Ministers on Episcopal Visitations, - 299 

Of the Use of the Book of Common Prayer, - 317 



CHAPTER Y. 

TITLE I. Differences between Ministers and Congregations, 321 

§ 1. Application — -By whom, - 323 

§ 2. Notice of the Application, - - 326 

§ 3. Nature of the Disputes, - - 327 

§ 4. Who are to be Summoned, - - 328^ 

Dissolution of the Pastoral Connection, - 331 

Relinquishment of the Ministry, - - 337 

§ 1. Cases within the Canon, - 338 

§ 2. The Form of Renunciation, - - 345 

§ 3. Ecclesiastical Proceeding Depending, - 347 

§ 4. Clause as to Moral Standing, - - 352 

Of a Minister Absenting Himself from his Diocese, 356 
Of the Removal of a Minister from One to Another 



TITLE II. 
TITLE III. 



TITLE IV. 
TITLE V. 

TITLE VI. 

TITLE VII. 

TILLE VIII. 



Diocese, &c. 



358 



Of a Clergyman in any Diocese chargeable with 
Misdemeanor in any Other, - - 363 

Of Ministers officiating in the Cures of other Cler- 
gymen, ----- 365 

Of Persons officiating not Members of the Church, 380 



CHAPTER YI. 



OF THE PENAL LAW OF THE CHURCH. 

TITLE I. Amenability of Ministers, 

TITLE II. Of Punishable Offences, 
TITLE III. Mode of Trial, - 

§ 1. Presentment or Charge, 

Form of Presentment, - 

$ 2. Board or Court of Triers, 



384 
387 
395 
395 
401 
404 



CONTENTS 



11 











PAGE. 




§ 3. Mode of Proceeding, 




- 


407 




§ 4. Counsel, - 


- 




409 




§ 5. Notice — Citation — Service, 




- 


410 




§ 6. Refusal or Neglect to Appear, - 


- 




410 




§ 7. Confession, - - - - 




- 


412 




§ 8. Publicity of Trial, 


- 




412 




§ 9. Number of Witnesses, 




- 


413 




§ 10. Decision or Judgment, - 


- 




413 


TITLE IV. 


Of Sentences, - 




- 


417 




Deprivation, - 


- 




417 




§ 1. Admonition, - 




- 


417 




§ 2. Suspension, - 


- 




418 




Suspension pendente lite, 




- 


423 




$ 3. Degradation, - 


- 




426 




§ 4. Excommunication, - 




- 


430 




§ 5. Removal of a Sentence, 


- 




433 


TITLE V. 


Of Lay Discipline, - 




- 


435 




§ 1. Crimes and Scandals to be Censured, 


- 




435 




§ 2. Method of Inquiry, - 




- 


441 




§ 3. Provisions in Some Dioceses. 


- 




450 


TITLE VI. 


Trial of a Bishop, - 




- 


455 


TITLE VII. 


Ecclesiastical Jurisdiction, and Effect of a 


Sentence 




in the Civil Courts, 


. 




467 



ERRATA. 

Page 43, Line 1. For " ne cullum," read nee ullwm. 

" 72, " 21. For " Gilbert," read " Gibert." 

"116, " 4. Strike out the word "fifth." 

" " " 13. Do. Do. "Canon." 

"131, " 9. Of Note, for partialaribus read ptovincialibus. 

" 139, " Strike out the 9th line— Insert after the word " a " on the 1 Oth 

line, the words " Special Convention." 

" 168, " 4th from the bottom, strike out " and." 

"22*7, " 17. For"porra," read porro. 

" 231, " 22. For " prohibitimem," read " prohibitionem." 

" 273, " 20. For "ever," read "even." 

"283, " 4. For " promosendum," read " promovendum.' , 

"284, " For "qusersela," read "qujerela." 

« 441. « 27. For " urges," read " argues." 

" 451. " 14, After word " convention," insert word " as." 
Pages 417, 418, and 419 are misprinted for pages, 415, 416, 417. 

The author suggests the expediency of making these alterations with a pen. ^ 



INTRODUCTION 



OF THE LAW OF THE CHURCH. 

The laws ami regulations concerning the discipline of the 
Protestant Episcopal Church of the United States may be 
thus arranged : 

1st. The Constitution and Canons of the General Con- 
vention, forming a code for the uniform government of every 
Diocese and every Church. 

2d, The Constitution and Canons of the several Dioceses, 
of force only within their several precincts, and generally 
subordinate to the power of the Greneral Convention. 

3d. The Rubrics of the Church, and in some particulars, 
the Articles. 

4th. The civil laws of the states affecting the Churches 
and their members, in regard to corporate or personal rights, 
civil privileges, and the acquisition and preservation of pro- 
perty. 

5th. And to these, in my judgment, is to be added a por- 
tion of the Ecclesiastical Law of England ; of that law strictly 
so called, and distinguished from what in that kingdom is 
known as the Foreign Canon Law. 

The Constitutions and Canons, and those portions of the 
2 



14 INTRODUCTION, 

laws of the states which are applicable, will be hereafter 
stated and discussed. I shall seek in this introduction to 
prove that the Ecclesiastical Law of England has an actual 
force and operation in the system of our Church — to point 
out the extent of that operation — its limits and qualifications. 
But in order to understand, as well as to illustrate the 
meaning and the limitations of the proposition, it is necessary 
to enter somewhat at length into the history of the Colonial 
Church. 

OF THE CHURCH OF ENGLAND IN THE COLONIES. 

It is an admitted maxim that the great body of the com- 
mon law of England, and of its statute law so far as adapted 
to the situation of the colonies, was brought to this land from 
the mother country, and formed the basis of colonial law. 1 

1 Chancellor Kent thus states the doctrine :-— c: Although the 
great body of the common law consists of a collection of principles, to 
be found in the opinions of sages, or deduced from universal or im- 
memorial usage, and receiving progressively the sanction of courts, it 
is nevertheless true that the common law, so far as applicable to our 
situation and government, has been recognized and adopted as an en- 
tire system by the constitutions of New-York, Massachusetts, New 
Jersey and Maryland. It has been assumed by the courts of justice, or 
declared by statute, with the like qualifications, as the law of the land 
in every state. It was imported by our colonial ancestors as far as it 
was applicable, and was sanctioned by royal charters and colonial 
statutes. It is also the established doctrine, that English statutes, 
passed before the emigration of our ancestors, applicable to our situa- 
tion and in amendment of the law, constitute a part of the common 
law of this country." {Commentaries^ vol. 1st, p. 472.) 

The rule is admirably expressed by Mr. West in an opinion given 
in 1720. u The common law of England is the common law of the 
plantations, and so all statutes in affirmance of the common law ante- 
cedent to the settlement of a colony, unless there is some private act 
to the contrary ; though no statutes made since those settlements are 
there in force, unless the colonies are particularly named. Let an 
Englishman go where he will, he bears as much of law and liberty 
with him as the nature of things will bear." (Chalmers' Opinions of 
Eminent Lawyers, vol. 1, p. 194. See also Atty. Gen. Stuart 2 



INTRODUCTION". 15 

Now this great principle, which pervaded every colony 
founded by Englishmen, prevailed, in a particular spherej 
wherever a Church upon the basis of that of England, was 
established. They who belonged to such a Church were 
members of that of England at the time of their arrival, or 
voluntarily joined it here. The former brought with them — 
the latter adopted — the doctrine and discipline, the rules and 
order of the English Church. 

Undeniable as this proposition seems to be, yet it is 
necessary, by a fuller statement, to guard it from mistake. 
The proposition is not, that the Church as an establishment, 
with the statutes of supremacy and uniformity, formed part 
of the law of the colonies, where the charters did not other- 
wise provide ; but the proposition is, that all members of the 
Church of England in the colonies were subject to the eccle- 
siastical law of England, except where it was expressly 
altered or necessarily inapplicable. 

Under the colonial government in New-York some suits 
were instituted involving the question as to the force of the 
statues establishing the king's ecclesiastical supremacy, 

Merivale, 143. And more particularly as to ecclesiastical law — in a 
case of Gaskins vs. Gaskins, (3 Iredell's Law Rep. 155, N. Car.) the 
Chief Justice said : " Testaments existed at the common law. and 
their validity depended upon principles declared by that law, or rather 
by the canon law as part of that law administered in peculiar juris- 
diction, that is to say, the ecclesiastical courts. It was argued at 
the bar, that although this might be the law of England, yet since the 
jurisdiction is here changed to a common law court and jury, nothing 
short of publication by execution will sustain even a will of person- 
alty; but we cannot accede to this argument, for although the juris- 
diction be changed the rule of decision is not. The canon law is a 
part of the common law, so far as respects testamentary causes, and 
except such changes as may have been produced by statutes. We 
now determine here what is a good will of personal property, exactly 
upon the same principles that prevailed when the governor took the 
probate of wills, or before the ecclesiastical judge in England." See 
also Bogardus vs. Trinity Church, 4 Paige's Rep. 178. 



16 INTRODUCTION. 

the acts of Conformity, and consequently those of Toleration. 
The case of McKennie, in 1707, was one, and in 1723 the 
subject was warmly agitated. A statement of some of the 
topics and arguments which were then urged upon the sub- 
ject is contained in the note. 1 

Some criticism might fairly be made as to the effect and 
meaning of part of the authorities stated ; but conceding 
that they are unanswerable, yet it is clear, that the question 
of the force of the laws of the Church of England upon that 
Church in the colonies is wholly unaffected. What laws 
Churchmen brought with them, or submitted to for the regu- 

1 Smith's History of New-York, III. et. seq. Mr. Smith states, 
il The Episcopalians pretend that the ecclesiastical establishment in 
South Britain extends here, but the whole body of Dissenters are 
averse to the doctrine. The point has been discussed with great fer- 
vor, and the sum of the arguments against it is contained in a late 
paper. It was published in September. 1753. under the title of the 
Iudependent Reflector.'' 

Among the authorities cited in this paper is an extract from a 
sermon stated to have been preached by Dr. Bisse. Bishop of Hereford, 
in 1757, before the Society for the Propagation of the Gospel, in which 
he owned that the government at home did not interpose in the case, 
or establish any form of religion. He quotes also a letter from the 
Lords Justices to Governor Dummer in 1725, in which they say there 
is no regular establishment of any national or provincial Church in the 
plantations. And the authority of Bishop Gibson is also cited, con- 
tained in a letter to Dr. Colman. of May, 1735. "My opinion has 
always been, that the religions state of New England is founded on 
an equal liberty to all Protestants, none of which can claim the name 
of a National Establishment, or any kind of superiority over the rest." 

Dr. Hawks (vol. 1, p. 109) states that Mr. Davies. about 1745, ob- 
tained an opinion from the Attorney General, Sir Dudley Ryder, that 
the English Toleration acts extended to Virginia. Smith observes 
(Hist. N. Y.j 191) that Counsellor West gave an opinion in 1724, upon 
being consulted by the Board of Trade, " that the acts of Uniformity 
did not extend to New-York, and consequently an act of Toleration is 
of no use in that province." It would seem, then, that an English 
Act of Toleration would supersede a Virginian Act of Uniformity, a 
point doubtful at least. 

See also Wilrerfouce's Colonial Church, 112, in which the opinion 
of the Lords Justices is also stated. 



INTRODUCTION. 17 

lation of their spiritual, and incidental secular relations, is a 
wholly different question from that of the prevalence of a law 
regulating the worship of every colonist. 

The result to which these observations lead, viz., that the 
Church of England in the colonies was subject to all the 
laws of that of England which could apply to its situation, 
will be established by a glance at its settlement and course. 

I proceed to state the legal position of that Church, and 
to notice various historical facts illustrating its connection 
with that of England, and bearing upon the proposition 
advocated. 

It is first to be noticed that in those colonies in which any 
preference or superior privilege was bestowed upon the 
Church, it was by laws emanating from the provincial legis- 
latures themselves. 

Thus the colony of New- York, after the charter to the 
Duke of York was granted, was governed for several years 
(1664 to 1683) by a code known as the Laws of the Duke of 
York. The 4th section of the title, Church, runs thus — 
" That no minister shall be allowed to officiate, within the 
government, but such as shall produce testimonials to the gov- 
ernor, that he hath received ordination either from some 
Protestant bishop or minister, within some part of his ma- 
jesty's dominions, or the dominions of some foreign prince of 
the Reformed Religion ; upon which testimony the governor 
shall induce the said minister into the parish that shall make 
presentation of him, as duly elected by the major part of the 
inhabitants, householders." 

It will be seen that under this law it was not necessary 
that a minister should be of the Church of England to obtain 
a license for a parish. 1 

1 In 1840 a question arose under the Act of 31st of George 3d, 
Cap. 31, called the Constitutional Act of the Cauadas, in which the 
language is almost identically the same with that of the law of the 
Duke of York. The judges of England were consulted by the House 



18 INTRODUCTION. 

By one of these laws all the inhabitants were to bear 
their due proportion of charges for the support as well of 
Church as of the state ; and if a person did not voluntarily do 
so, he should be compelled by assessment and distress. 

In 1672, certain orders were made at the General Court 
of Assizes held in New- York, and among them was an order 
that the laws of the government be duly observed as to paro- 
chial churches ; and although divers persons may be of dif- 
ferent judgments, yet all shall contribute to the minister 
established and allowed of. 1 

And in 1675, another Court of Assizes was held, and it 
was ordered that towards the maintenance of the ministry, 
besides the usual county rate, there shall be a double rate 
levied upon all those towns that have not already a sufficient 
maintenance for a minister. 2 

In 1693, the Assembly of New- York enacted a law for 
settling a ministry, and raising a maintenance in the coun- 
ties of New-York, Richmond, "Westchester and Queens. It 
provided that in each of these counties there should be called, 
inducted, and established a good sufficient Protestant min- 
ister, to officiate and have the cure of souls ; that there 
should be annually assessed and levied a certain sum for the 
maintenance of such ministers. 3 

In the session of 1695, the House of Assembly resolved 
that the wardens and vestrymen had power to call a Dissent- 
ing Protestant minister under this act. By this statute ten 
vestrymen and two churchwardens were to be elected, who 
were, with the justices, to assess the maintenance of the min- 
ister. In 1705 a further act was passed, entitled " An Act 

of Lords, and answered, that the words, " A Protestant Clergy," in the 
statute included other ministers than those of the Church of England. 
Phu.limork's Ed. of Burns , vol. 1, p. 415. TTTT. 

1 Collections Hist. Soc. N. Y., vol. 1, p. 421. 

9 Ibid. 428. 

3 Laws of Colony of New-York, vol. 1, p. 18. 



INTRODUCTION, 19 

for the better establishment of the maintenance of a minister 
in the city of New- York," &c. 

These several statutes were repealed by the acts of 17th and 
20th of April, 1784, in which it was declared that though such 
acts were at variance with the constitution of the state, as 
tending to support and establish a particular denomination of 
Christians, yet it was necessary to repeal them to prevent 
uneasiness arising. 

Notwithstanding the resolution of the Assembly, and per- 
baps the true construction of the statute, it is almost certain 
that the intention of the Legislature was to give a preference 
to the Episcopal ministers ; and such was the construction 
in practice. This appears from various passages in Smith's 
History of New-York, 1 and fully from the recitals and other 
clauses in the acts of the 17th and 20th of April, 1784, above 
referred to. 

So in South Carolina, the charter to the Earl of Clarendon 
and others gave them the right of patronage, and the ad vow- 
son of all churches, chapels and oratories, and to cause them 
to be dedicated according to the ecclesiastical law of Eng- 
land. It conferred also the power to dispense with conformity 
to the liturgy and ceremonies of the Church, and subscrip- 
tion to the Articles.' 2 

Although by the ninety -sixth of the fundamental articles 
drawn up by Mr. Locke, it was declared " that the Religion 
of the Church of England, being the only true and orthodox, 
and the national religion of all the king's dominions, was also 
that of Carolina " — yet the public maintenance was only to 
be by Act of Parliament; and, by the ninety-seventh ar- 
ticle, indulgence to form congregations, churches, and profes- 
sions, was accorded to ail. 

In the year 1696-7, the General Assembly passed an Act 

1 History New-York, p. 110. Ibid. 218. 

9 Dalcho's History of the Church in S. Carolina, 1-3. 



20 INTRODUCTION. 

granting liberty of conscience to all Protestants "to enjoy full 
and undisturbed liberty to exercise their worship according 
to the professed rules of their religion." ! 

In 1698, an act was passed for providing a public main- 
tenance of $150 per annum for a minister in Charleston, pay- 
able ont of the public treasury. This act recited the pro- 
vision of the Charter of Charles IL, that no religious ministry, 
except that established by law in this kingdom of England, 
should have any public maintenance. And, in November, 
1706, an act was adopted supporting the establishment, which 
continued to be the law of the Church in that colony, with 
some additions and variations, to the time of the Revolution, 
and portions of which it is understood regulate the Church 
to this day. 2 

It is not necessary to notice any act connected with Vir- 
ginia prior to the new charter granted in 1619. In that it 
was provided, that the clergy should have, in each borough, 
a glebe of one hundred acres, and should receive a standing 
revenue of two hundred pounds. In 1619, the Colonial As- 
sembly passed an act embodying these provisions ; and, in 
1621-2, further provisions were made upon the subject. Dr. 
Hawks remarks, 3 that the Church could not claim for itself 
the privileges of an establishment prior to the legislation of 
1619 ; that, from such period, we are to date the establish- 
ment of the Episcopal Church in Virginia. 

In 1624, the Assembly, among other enactments respect- 
ing the Church, adopted the following, " That there should be 
an uniformity in the Church, as near as might be to the 
canons of the Church of England, and that all persons should 
yield a ready obedience to them, upon pain of censure." 4 

1 Dalcho's History, 31. 

2 Ibid. app. 1. 

* Contributions to Ecc. His. vol. i., p. 35. 
4 Ibid. 44. 



INTRODUCTION. 21 

In 1642, an act was passed, declaring " that no minister 
should be admitted to officiate, in this country, but such as 
shall produce to the governor a testimonial that he has re- 
ceived his ordination from some Bishop in England, and shall 
then subscribe to be conformable to the orders and constitu- 
tions of the Church of England, and the laws there estab- 
lished. 1 

So, in 1662, the royal instructions were carried out by a 
legislative act. Provision was made for payment of a salary, 
and no one could serve as a vestryman without taking the 
oaths of allegiance and supremacy, and subscribing a decla- 
tion of conformity to the doctrine and discipline of the Church 
of England. There was also a penalty imposed upon those 
who should not attend divine worship. 

In 1745 it was determined by the Attorney General, on a 
reference to him, that the English Act of Toleration extended 
to Yirginia, and under this Presbyterianism arose and flou- 
rished in the state. 2 

"With the qualifications resulting from this decision, the 
law remained the same until the sweeping repealing act of 
1776. 3 

In Maryland, the first step towards the recognition of the 
Church as an Establishment, was by an Act of the Assembly 
of 1692. A certain tax was laid and ordered to be applied in 
support of a minister. In 1696 a new law was passed, an- 
nulling that of 1692, as well as several subsequent laws ; and 
it was provided, "that the Church of England within this 
province, shall enjoy all the rights, privileges and freedoms, as 
it is now or shall be hereafter established in the kingdom of 
England ; and that his Majesty's subjects of this province 
shall enjoy all their rights and liberties, according to the laws 

1 Hawks' Contr., vol. i. p. 53. 

' 2 Ibid. p. 109. See the note ante p. 16. 

3 Ibid. 143. 



22 INTRODUCTION. 

and statutes of the kingdom of England, in all matters and 
causes where the laws of this province are silent." l 

This act, by a manoeuvre of the adversaries of the Church, 
did not receive the royal assent ; and in 1700 another was 
passed. This also was vehemently opposed. The able and 
devoted Dr. Bray went to England to obtain the sanction of 
the king, and a statute was drawn up in that kingdom. It 
was sent to Maryland, and in 1702 became a law. 2 By this 
law, every congregation and place of worship, according to the 
usage of the Church of England, was to be deemed a part of 
the Established Church. Every minister presented, inducted 
or appointed by the Governor, was to receive forty pounds of 
tobacco per poll. The sheriffs were to collect the tax. The 
English acts of toleration were extended to Quakers and Pro- 
testant Dissenters, under certain regulations. 3 

It is not necessary to detail the successive assaults upon 
the Church and the rights and property of the clergy, which, 
through a long series of years, were made in the Assembly of 
Maryland. Bitter animosity and perseverance advanced from 
innovation to outrage, until the Revolution brought with it, 
as a necessary and justifiable consequence, the overthrow of 
the Church as an Establishment ; and the declaration of the 
rights and liberties of the State of Maryland, in November 
1776, terminated all that had survived of its distinctive pri- 
vileged character. 4 

1 Hawks' Contr., vol. ii. p. 71. 2 Ibid, 89. 96. 113. 

3 The remarks of Dr. Hawks, (p. 115,) that this law sprang from the 
Board of Trade, and that its adoption by the Assembly of Maryland 
was a mere formal mockery, seem scarcely warranted. Whatever were 
its merits or demerits, it was a full expression of the real sentiments 
of the Assembly. The law of 1700 was quite as rigid in regard to 
Papists, and without any toleration of Dissenters ; yet it passed the 
Assembly unanimously. 

4 The Legislature of Maryland, with a sense of justice most com- 
mendable in those days, secured to the Church all the glebes and 
pro x erty then owned by her, and directed that the repairs of the sacred 



INTRODUCTION, 23 

From this detail of the legislation in these colonies, it is 
plain that the whole system of a partial provision for the 
Episcopal Church is attributable to the Assemblies themselves. 
The government of England did not prescribe it : — Parliament 
was inactive and silent. There were, indeed, injunctions to 
this effect in several of the instructions of the king ; but as to 
these we must notice, that a National Church could only be 
established by the authority of Parliament. No other power 
could bind the whole realm to uniformity of worship, or render 
an oath of subscription to articles, a condition of filling a civil 
or other office. 1 

Hence, when we find that in royal instructions and pro- 
clamations, the governors of colonies are directed not to prefer 
any one to an ecclesiastical benefice without a certificate from 
the Bishop of London of his conformity to the doctrine and 
discipline of the Church of England, we meet the very question 
which so long agitated the colonies as to the force of the 
royal ordinances, and must admit their insufficiency. 2 

It is not to be denied that the governors often availed 
themselves of these proclamations to justify their acts. Some 

edifices then progressing should go on. It forbade all further assess- 
ments for the support of ministers. 

1 The authority of the king over the Church, prior to the series of 
statutes in the time of Henry the Eighth, though largely insisted 
upon by Lord Coke, (5 Institute,) has been, and particularly of late, 
much questioned and limited. Bishop Stillingfleet long ago denied, 
that the king could appoint a commission to proceed by way of an 
extraordinary jurisdiction against persons by ecclesiastical censures. 
(Ecc. Cases, part ii. p. 67.) 

Mr. Churton, in his interesting history of the Saxon Church, affords 
valuable information upon this head. I think it may be gathered that 
the king was but one, though the head, of that great Assembly, in 
which priests, nobles and monarch framed the laws for both Church 
and State. See also Dawson's Origo Legum, Book vi., cap. 3d, 4th. 

2 Instructions to Lord Cornbury, Governor of New-York, 1703. 
Apud Hawkins' Hist. Notices, p. 423. Ordinance of the King, 1606. 
Apud Anderson's Hist, of the Colonial Church, p. 206. Instructions to 
Sir W. Berkely , Governor of Virginia. Apud Hawks' Contr., vol i. p. 65. 



24 INTRODUCTION. 

in the spirit of unjust intolerance, some in the conviction of 
their legality and the firm persuasion that to be within the 
Church of England was to be in the only path of safety, acted 
upon these instructions, and not upon the law. But the spirit 
of the age was not the spirit of toleration, nor can Churchmen 
be justly charged with an excess of severity. The act of 
Virginia, in 1642, which silenced the delegates from the mi- 
nisters of Boston under pain of banishment, will not contrast 
unfavorably with the statute of Massachusetts which doomed 
the exiled Quaker to death if he returned. 1 

Another and important characteristic of the Church of the 
colonies was this. It did not owe its existence or support to 
the government of England. Neglected and unnoticed, if it 
received no strength from the hands of ministers, it escaped 
the baneful influence of dependence upon them. The govern- 
ment cared not to interfere with the nominations of clergymen 
to the places of labor and destitution which fell to the lot of 
the missionaries. It was only when the fervent eloquence of 
Bishop Berkely had won from a reluctant Parliament the mu- 
nificent gift of £20,000 to found a college for America, that 
Sir Robert Walpole interposed, and plundered the fund to 
swell the nuptial pomp of a Princess. 2 

But it was to the Society for the Propagation of the Grospel 
in Foreign Part*, that this land was chiefly indebted for the 
spread of the sound doctrines and faith of the Church. That 
society was incorporated in 1701, and owed its existence as 
much to the exertions of Dr. Bray, commissary of Maryland, 
as to those of any other person. It was, in the language of 
the charter, established "for the receiving and managing such 
funds as might be contributed for the religious instruction of 
his Majesty's subjects beyond the seas ; for the maintenance 



1 Hawks, vol. i. p. 53. 

2 Hawkins' Church in the Colonies. Chandler's Life of Johnson, 53. 



INTRODUCTION. 25 

of clergymen in the plantations, colonies and factories of Great 
Britain ; and for the general propagation of the Gospel." 

It would be inappropriate here to trace the transactions of 
this beneficent body. The story of its abundant labors and 
countless blessings, is a proper theme for the eloquent pen of 
the historian of the Church. Throughout his own works — 
throughout the late publications in England upon colonial 
annals — are poured forth in a copious stream, the memorials 
of its holy efforts, and their holy fruits ; and when from the 
thousand altars of the Episcopal Church, the utterance of 
praise and prayer arises in the stately-flowing language of the 
liturgy of Edward, let us remember that chiefly to that society 
we owe the inappreciable gift. 

Nor does it devolve upon me to do more than to glance at 
the early, renewed, incessant efforts of American Churchmen 
to obtain a bishop for the colonies. From the year 1702, 
when the plan of the zealous Dr. Bray was urged, to the year 
1767, when Johnson and Chandler made the last appeal, the 
missionaries of the Church stood upon the shore, and beckoned 
the descendants of the Apostles to come across. They beckoned 
ineffectually, and the cause of Episcopacy trembled for many 
years in the struggle with dissent. 1 

In connection with this topic, I shall briefly advert to the 
superintendence of the Bishop of London over the colonial 
Church, and its union with the Diocese of London. Some 
obscurity attends the origin of this authority ; but at a later 
period, it was derived from the king's Commission.' 2 

1 Hawks, vol. 2, p. 119. Chandler's Life of Johnson, p. 115. Some 
earlier attempt may have escaped my notice. 

2 Dr. Hawks states (vol. 2. p. 112) that Bishop Gibson was the only 
bishop who had taken a commission from the king. Bishop Wilber 
force observes (American Church, p. 137) that when Gibson came to 
the See of London he was told that by an order of Council in the 
reign of Charles II., the colonies were made a part of the See of 
London; that upon search he discovered none such to exist, and that 
he declined to act until he obtained a commission from the crown. 



26 INTRODUCTION". 

It would be an endless and unnecessary task to detail the 
recognitions by the Church and public bodies, of the authority 
of that Bishop. It is sufficient to adduce a few examples in 
the note, and to say that it was scarcely ever questioned. 1 - 

There are some other facts illustrative of the situation of 
the colonial Church in connection with that of England, which 
I deem it useful to notice. 

In May 1704, the Assembly of South Carolina passed an 
act requiring conformity to the worship of the Church of 
England, in all members of the Commons House of Assembly. 

The Reverend Edward Marston strongly censured the sta- 
tute, and was proceeded against for reflecting upon the purity 
and character of the house. It ended by his being deprived, 
by resolution, of his salary of ^£150, granted under the act of 
1698 ; leaving his office and ecclesiastical function to his 

His first act appears to have been an address dated November, 1723. 
In the instructions of the venerable Society to the missionaries, they 
were directed to wait upon the Lord Bishop of London, their Diocesan ; 
(1 Hawkins' Hist. Notices, p. 424 ;) and in the instructions to the 
governor, of 1703, this authority over them is recognized. (Ibid. 423.) 

There are two letters from Bishop Sherlock in Chandler's Life of 
Johnson, dated, one in 1750, and the other in 1752, adverting to the 
necessity of taking out a royal patent, and from the last of which I 
judge that he ultimately did so. (Page 171.) 

1 As early as 1687, a memorial was presented from Maryland to 
the Bishop of London, " to send some one invested with so much of 
the authority of the Diocesan as would capacitate to redress what was 
amiss, and supply what was wanting in the Church." In this the 
governor and Assembly concurred. (Hawks, vol. 2, p. 81.) In Jan- 
uary, 1699, the governor and Council of South Carolina addressed a 
letter to the Bishop, speaking of the fatherlike care he had taken to fill 
all the churches in his majesty's plantations in America with pious, 
learned and orthodox ministers, and especially by securing so emi- 
nently good a man as the late minister, Mr. Marshall." (Dalcho's 
Hist,) The bishop appointed commissaries for various colonies, 
the Rev. Mr. Johnson, for South Carolina, in 1707; Henderson and 
Wilkinson, for Maryland, in 1716; Dr. Bray, for North Carolina, in 
1703; Dr. Blair, for Virginia, in 1689; and the Rev. Mr. Vesey, for 
New- York in 1713. 



INTRODUCTION. 27 

Ecclesiastical G-overnors and Ordinary, and not meddling 
therewith. The deprivation was to be until amendment and 
submission. The Governor and Council concurred in this 
censure. 1 

Another law of this colony, passed in November 1704, 
contained provisions of a very arbitrary and exclusive nature, 
and became a source of offence both to Churchmen and their 
adversaries. The Dissenters treated it as a violation of the 
charter and an infringement on their privileges : the Church- 
men complained of it as constituting a lay tribunal for the 
judging of ecclesiastical cases. A commission for that pur- 
pose was established of twenty laymen. This was denounced 
as an invasion of the authority of the Bishop of London, by 
whom, or by whose officials, such courts could alone be held. 
In 1706, a memorial was sent to the House of Lords, 
complaining of this act of the Assembly. It stated, amongst 
other things, that the ecclesiastical government of the pro- 
vince was under the Bishop of London, but that the governor 
and his adherents had at last done what the latter have often 
threatened to do — wholly abolished it. Q 

The Lords voted an address to the queen, in which they 
declare, that the said act, so far as the same relates to the 
establishing a commission for displacing the rectors or minis- 
ters of the Churches, was not warranted by the charter, was 
repugnant to the law of the realm, and destructive of the con- 
stitution of the Church of England. 

They denounced equally the provision of the other act, as 
to the qualifications of members of Assembly. That act I 
have before noticed, as passed in May, 1704. In June, 1706, 
the queen declared the laws to be null and void. The Society 
determined to send no more missionaries to South Carolina, 
until the Legislature repealed the acts ; and, accordingly, in 
November, 1706, the General Assembly abolished them. 

1 Dalchos 5 Hist., 56-58. 3 Ibid. p. 65. 



28 INTRODUCTION. 

A striking case is to be found in the history of Maryland. 
In 1704, one of the parishes made an application to the go- 
vernor, by way of petition, and drew up articles against their 
ministers. The governor consulted with some of the clergy. 
The course recommended was, that if a remonstrance with 
the ministers proved ineffectual, then the governor should call 
on him to answer the charges preferred, and that the testi- 
mony should be transmitted to the Bishop of London, for his 
determination of the case. The vestry renewed their solicita- 
tions to the governor to decide the case. He thought of sum- 
moning the party to make his defence before the council, but 
was advised by some of the clergy, that the matter was of 
purely ecclesiastical jurisdiction. He then sent three clergy- 
men into the parish to examine into the matter, partly to quiet 
the minds of the complainants, and partly to ascertain facts 
which might be laid before the bishop. 1 

In this precedent, we have the theory of ecclesiastical 
authority and the rule of the canon law of England observed 
as far as it was practicable. By that law, the churchwardens 
have the right, and are the proper persons, to lay a complaint 
before the bishop of the diocese, by whom it is to be investi- 
gated and determined. 9 The application to, or through the 
governor, was a matter anomalous, but growing out of his 
legal position. The governor disclaimed the power of judg- 
ing a matter merely ecclesiastical, and put the parties in the 
way of having the facts laid before the bishop. 

Again. — In the course of the fierce and persevering attack 
made by Bordesley upon the Church, he introduced a bill into 
the Assembly to establish a Court for the Trial of Clergymen, 
and thus to bring them under a lay jurisdiction. The gover- 
nor refused his assent; first, because the clergy were properly 
under the jurisdiction of the Bishop of London ; and, next, be- 

1 Hawks 7 Confr., &c, vol. 1, p. 140. 

* PHILLIMORE's Ed. of Jhtrns, vol. l,p. 399. 



INTRODUCTION. 29 

cause there were really no such evils as to render the law- 
necessary. 1 So we find that the Commissary of the Bishop 
officially informed one of the clergy of complaints made against 
him, and preliminary measures were taken for the investiga- 
tion and correction of his conduct. 2 

Upon this subject, however, the attempt to procure an 
act from the Assembly of Maryland, recognizing the authority 
of the Bishop of London, deserves consideration. The details 
will be found in Dr. Hawks' volume, p. 159, &c. It appears 
that it was sought for by the governor ; that it was not re- 
quired, or deemed necessary, by the Bishop ; that it was 
opposed by Mr. Henderson, the Commissary of the Eastern 
shore ; and that the leading motives for the effort were the 
removal of difficulties which attended the exercise of the 
Commissary's power. By one provision, for example, the 
sheriff was appointed the officer to serve citations, &c. 

Upon the whole, it is manifest, that this attempt was to 
strengthen and facilitate the exercise of the Bishop's jurisdic- 
tion, not to establish it. 

During the colonial period, it was the custom of the clergy 
of Connecticut to meet in convention, and transact such busi- 
ness as lay in their power. After the consecration of Bishop 
Seabury, these assemblies were termed convocations. The 
connection with the English Church is clearly recognized, or 
implied, in all the early records. 3 

1 Hawks' Cont., vol. 2, p. 179. 

* J Ibid. p. 159. 

'Thus, at a meeting of convention at Wallingford, May 28, 1776, 
the following act took place : — " We, the clergy of the Church of Eng- 
land in Connecticut, in a voluntary convention, beg leave, with all 
humility, to recommend Mr. Abraham Beach to your Lordship, as a 
proper candidate for holy orders." This was addressed to the Bishop 
of London. It was also voted that a letter be wrote to the Bishop of 
London to acquaint him concerning the conduct of the churches in 
these difficult times ; and also concerning the taking away children 
from their godfathers." I have examined various minutes of these 
3 



30 INTRODUCTION. 

I have thus gathered together a collection of facts and 
historical muniments, to show the identity of the Church of 
the colonies with that of England — to show how thoroughly 
she was pervaded with the spirit of the law, as well as of the 
faith and doctrine of that Church. In following this inquiry, 
it can scarcely have escaped notice, how much that law was 
modified and influenced by our colonial situation, usages, and 
jurisprudence. The truth is, that a common law bad sprung 
up in the colonies, the offspring of their necessities and posi- 
tion, in the same manner as the common law of England had 
arisen in the Saxon ages. The latter, with wonderful flexi- 
bility, had adapted itself to the mutations and the progress of 
successive centuries. That superadded American common 
law was developed in usages and statutes ; and its influence 
was felt in the system of the Church, as w r ell as in the civil 
relations of the people. 

And thus, as we better understand her character and posi- 
tion, we shall better appreciate the facility of her transition 
from the Church of England in the colonies, to the Protes- 
tant Episcopal Church of the United States. No violent dis- 
ruption of the sacred bond took place. The daughter glided 
from the mother's side, because, in the allotment of Provi- 
dence, she had been led to maturity and independence ; but 

conventions through 1774, 1776, 1780, and other years. In 1776, in 
June, it was resolved, that the clergy supply the vacant congregations 
of the Church of England in this colony as often as will be consistent 
with their other duties. And the members present were distributed 
accordingly. 

At the same meeting, letters recommendatory were given to Mr. 
J. Nichols as a candidate for orders, addressed to the Bishop of 
London. 

In May, 1781, a conventional letter was directed to be written to a 
clergyman, expressive of their concern for his deviation from the doc- 
trines of the Church, and appointing a committee to consider what 
was advisable to be done in his case. 

The heading of the minutes of the convention, is, " At a Meeting 
of the Clergy of the Church of England in Connecticut." 



INTRODUCTION. 31 

the spiritual union, the union of faith, of worship, and of dis- 
cipline, was undestroyed ; and God grant that it may prove 
indestructible. 

The separate action of the Churches in the states, after the 
revolution, and prior to or about the period of the organization 
of the General Convention, is the next subject of inquiry. 
On the day after the declaration of Independence, the Con- 
vention of Virginia altered the Book of Common Prayer to 
accommodate it to the change of affairs. 1 This document is 
found in the State Library, in Albany. It contains various 
alterations of the service, almost exclusively relating to the 
prayers for rulers, and closes as follows: 

" Let every other sentence of the Litany be retained, with- 
out any other alteration, except the above sentences recited." 
By the act of the Assembly of Virginia, of 1784, the ves- 
trymen were required to subscribe a Declaration of Confor- 
mity to the Doctrine, Discipline and Worship of the Protes- 
tant Episcopal Church. 3 

Among the regulations of 1785, it was provided, that the 
Liturgy of the Church of England should be used with such 
alterations only as had been rendered necessary by the Ame- 
rican Revolution. 3 

In 1790, during the bitter assaults upon the rights of the 
Church to the glebes, it was resolved by the Convention, 
" That the Protestant Episcopal Church is the exclusive owner 
of the glebes, churches, and other property held by the Church 
of England in Virginia, at the commencement of the revolu- 
tion ;" 4 and, in 1799, an opinion was given by Bushrod Wash- 
ington, Edmund Randolph and John Wickham, asserting the 
same doctrine as was contained in the resolution of the Con- 
vention. 

1 Hawks' Contr. vol. 1, p. 238. a Ibid. 163. 3 Ibid. 182. 

4 Ibid 209. An Essay was read by Dr. Madison upon this subject . 



32 INTRODUCTION 

The action of Maryland is of the highest importance. In 
1775, the authorities prescribed a form of prayer for the new, 
instead of the old government, and required an oath of the 
clergy to support it. 

In 1783, the celebrated Declaration of fundamental rights 
was issued by the first convention. It was declared that 
"the Church of Maryland possessed the right to preserve and 
complete herself as an entire Churchy agreeably to her ancient 
usages and professions : that she had the essential enjoyment 
of those spiritual powers which are essential to the being of 
every Church, independent of any foreign or other jurisdiction? 
so far as may be consistent with the civil rights of society. " 

It was also declared, " that the churches, chapels, glebes 
and other property formerly belonging to the Church of Eng- 
land, belonged to that Church and were secured to it for ever " ; 
and it closed with the following admirable passage : " As it is 
" the right, so it will be the duty of the said Church, (when 
" duly organized, constituted and represented in a synod or 
" convention of the different orders of her ministers and 
" people,) to revise her liturgy, forms of prayer, and public 
" worship, in order to adapt the same to the late revolution, 
" and other local circumstances of America ; which, it is 
" humbly conceived, may be done without any other departure 
" from the venerable order and beautiful forms of worship of 
"the Church from which we sprung, than may be found 
" expedient in the change of our situation from a daughter 
" to a sister Church." 

In the Yestry act passed by the State of Maryland in 1798, 
and adopted by the Church as part of its organization, there 
is a clause expressly recognizing the Church of England a» 
having been the same as the Protestant Episcopal Church of 
Maryland.' 

1 Hawks' Contr., vol. ii. } p. 330. Compilation of the Constitution^ 
&c. Baltimore, 1849. p. 275, $ 16. 



INTRODUCTION. 33 

By the Constitution of South Carolina, 31st May, 1786, it 
was declared that the doctrines of the Grospel be maintained 
as now professed in the Church of England, and uniformity 
of worship be continued as near as may be to the liturgy of 
the said Church. (Dalchg's Hist., &c, p. 474.) 

The action and judgment of Pennsylvania is shown by the 
fundamental articles adopted in May 1784. One of them 
was, that the said Church shall maintain the doctrines of the 
Grospel as now held by the Church of England, and shall ad- 
here to the liturgy of the said Church as far as shall be con- 
sistent with the American Revolution and the Constitution of 
the respective States. 1 

In September 1784, Massachusetts declared certain articles, 
the third of which was almost in the identical language of 
that -of Pennsylvania above quoted. 2 

The State of New Jersey, in May 1786, passed a set of 
rules and regulations. By the 9 th, a declaration was re- 
quired from every clergyman before he could officiate in the 
state, "that he engaged to conform to the discipline of the 
Church, and also to the doctrines and worship agreeable to 
the Book of Common Prayer of the Church of England, 
except the political alterations in the mode of worship made 
therein by the Convention held in Philadelphia from the 27th 
September to the 7th October, 1785." 

In New-York, in 1790, it was resolved as follows : — • 
"Whereas many respectable members of our Church are 
alarmed at the Articles of our Religion not being inserted in 
our new Book of Common Prayer, Resolved, that the Ar- 
ticles of the Church of England as they now stand, except 
such part thereof as affect the political government of this 
country, be held in full force and virtue until a further pro- 
vision is made by the General Convention." 3 

1 White's Memoirs, 73. s Ibid, 69. 

8 Journals 1790, p. 39. 



34 INTRODUCTION, 

A proposition was submitted in 1791, instructing the De- 
puties to vote for retaining the Articles of Religion as they 
now stand in the old Book of Common Prayer, without any 
alteration except such as are of a political nature. The mo- 
tion was deferred. In 1801, instructions were given to that 
effect. 1 

The Convention of New Jersey, in May 1786, after debate, 
agreed to a memorial to the General Convention, in which the 
following admirable passages are to be found : " Your me- 
morialists do not question the right of every national or inde- 
pendent Church to make such alterations from time to time 
in the mode of its public worship as may be found convenient ; 
but they doubt the right of any order or orders of men in an 
Episcopal Church without a Bishop, to make any alterations 
not warranted by immediate necessity, especially such as not 
only go to the mode of its worship, but also to its doctrines. 
Your memorialists having an anxious desire of cementing, 
perpetuating and extending the union so happily begun in the 
Church, with all deference, humbly request the General Con- 
vention that they will revise the proceedings of the late Con- 
vention and their committee, and remove every cause that 
may have excited any jealousy or fear that the Episcopal 
Church in the United States of America has any intention 
or desire essentially to depart, either in doctrine or discipline, 
from the Church of England ; but on the contrary, to convince 
the world that it is their wish and intention to maintain the 
doctrines of the Gospel as now held by the Church of England, 
and to adhere to the liturgy of the said Church, as far as shall 
be consistent with the American Revolution and the Consti- 
tutions of the respective States." a 

Among the documents of great value connected with the 
history of the Church in Connecticut, which I have examined, 

1 Journal, 1801. 

• Proceedings of the Convention N. Jersey: Trenton, 1787. 



INTRODUCTION. 35 

is a letter from Doctor, afterwards Bishop Jarvis, dated May 
1786, which expresses the views of the clergy of Connecticut. 
Among other things, he remarks: — "In the planting and 
growth of the Church in America, I have always understood 
that the Church of England was propagated and enlarged. 
Now, as our Church was in her original a part, and is, in her 
formation, the image of that — if we still adhere to the wor- 
ship and doctrine, is it not proper (the question may be, whe- 
ther it be not needful) to declare so authoritatively ? I would, 
then, submit the following particulars : — 1. That it be recom- 
mended to the Bishop to call a convocation, at which a reso- 
lution should be moved that we adopt the liturgy of the 
Church of England entire, except the prayers for the state, 
and the offices appointed for state days ; or with some few 
abbreviations, such as will do no injury to the sense, order or 
connection of the whole. 2. That some particular prayers be 
added to those for special occasions, viz : for sick children, 
for persons under affliction for the death of friends, and for 
persons bound to sea, &c. 3. That such of the rubrics as we 
have found it necessary to deviate from, be altered where 
some alteration only is wanted ; or others made, that are ne- 
cessary to render our service and practice strictly rubrical 
and uniform. 4. That there be a revision of the canons, and 
such as are applicable, or may be made so, be selected ; and 
in matters for which it is needful to provide entire new ones, 
suitable to the state and circumstances of our Church, that 
such be provided and confirmed by act of convocation." 

In the year 1814, the following important act took place 
in the General Convention. The House of Bishops, and that 
of Clerical and Lay Deputies, united in the following de- 
claration : 

" It having been credibly stated to the House of Bishops, 
that on questions in reference to property devised before the 
revolution to congregations belonging to the Church of Eng- 



36 INTRODUCTION. 

land and to uses connected with that name, some doubts 
have been entertained in regard to the identity of the body to 
which the two names have been applied ; the House think it 
expedient to make these declarations, and to request the con- 
currence of the House of Clerical and Lay Deputies therein, 
viz. : That the Protestant Episcopal Church in the United 
States of America, is the same body heretofore known in 
these states by the name of the Church of England ; the 
change of name, although not of religious principle in doc- 
trine, or in worship, or in discipline, being induced by a cha- 
racteristic of the Church of England, supposing the indepen- 
dence of the Christian Churches under the different sovereign- 
ties, to which respectively their allegiance in civil concerns 
belongs. But it would be contrary to fact for any one to 
infer that the discipline exercised in this Church, or that any 
proceedings therein, are at all dependent on the will of the 
civil or ecclesiastical authority of any foreign country." 

I add, in the note, the valuable and strong authority of 
Bishop "White to the point now urged, as well as some other 
opinions. I would call attention to the perspicuous state- 
ment of the proposition by the late Thomas Addis Emmett. 1 

1 " In all the deliberations of the convention, the object was the per- 
petuation of the Episcopal Church, on the ground of the general prin- 
ciples which she had inherited from the Ghurch of England, and of 
not departing from them except so far as local circumstances required,. 
or some very important cause rendered proper. To those acquainted 
with the Church of England, it must be evident that this object was 
accomplished on the ratification of the Articles.' 7 

Again, <: The political prayers were superseded, (by the revolu- 
tion,) and the using them was punishable by events brought about in 
the course of Divine providence. To pray for our civil rulers was a 
duty bound on us by a higher authority than that of the Church. 1 In 
all other respects, I hold the former Ecclesiastical system to be bind- 
ing. The Conventions of our Church have always acted on the same 
principle, except that of October, 1789, whose adoption of a different 
principle has rendered our Liturgy much more imperfect (according to 

1 See the admirable Thanksgiving Sermon of Bishop Stiflingfleet, 1634. 



INTRODUCTION-. 37 

It appears to me difficult to overrate the force of the reso- 
lution of the Houses in 1814, and the similar proceedings in 
the states which have been mentioned. By the decided 
voice of the Church, separately expressed in Virginia and 

my opinion) than it would otherwise have been." (Appendix to Wil- 
son's Life of Bishop White, page 347.) 

After speaking of Dr. Blackwall, he says, " He is of opinion, with 
the House of Clerical and Lay Deputies, in 1789, that our Church pos- 
sesses no institutions until made for her specially. If the matter had 
been so understood at the close of the revolutionary war, and there 
had been among us such spirits as I can now designate, it would have 
torn us to pieces." (Ibid. 348.) 

In the Memoirs of the Church (p. 175) the Bishop goes through 
the discussion upon the Book of Common Prayer in the year 1789, and 
states the different principles upon which the House of Clerical and 
Lay Deputies and the Bishops proceeded. In the practical result, the 
views of the Bishops were carried out. The English book was made 
the basis. It was to remain, except as altered. 

See also his work on the" Comparative View of the Calvinistic and 
Arminian Controversy, vol. 2, page 191. So in the Memoirs of the 
Church he re-states the position, and urges many reasons in its sup- 
port, that what is now called "the Episcopal Church in the United 
States of America, is precisely in Succession the Body formerly known 
as the Church of England in America, the change of name having 
been a dictate of the change of circumstances in the civil constitution 
of the country." 

The opinion of the House of Deputies in 1789 was in opposition to 
that of the Bishops, and Dr. Wilson (Life of Bishop White, p. 141) re- 
marks that this differed from the course taken both by previous and 
subsequent conventions, and being confined to one House, and not at 
any time afterwards pursued, cannot be regarded as a determination 
against the principle adopted by the Bishops. 

Dr. Hawks (Constitution and Canons, p. 265) observes, '''The opin- 
ions which were entertained in the mother country, and the decisions 
which had been made on matters of ecclesiastical law, or usage, up 
to the severance of these colonies by the revolution, were, as far as 
applicable, held to be the guide of the Church of England here, and 
although the independence of the United States dissolved the con- 
nection, it evidently did not destroy the prevailing opinions among 
Churchmen as to matters and usages touching the Church. To the 
common and canon law of England we must therefore look, if we 
would fully understand the origin of much of the law of our own 
Church." 



38 INTRODUCTION. 

Maryland, and then uttered by the representative body of the 
whole Union, the identity of the Church of England with our 
own was proclaimed. In what then did this identity consist ? 
How was it that the Protestant Episcopal Church in Virginia 
and Maryland continued to be the owners of that property, 
which was once vested in the Church of England in the 
colonies. Was it because the Liturgy was retained with 
several modifications — because the Articles were republished 
with some variations — because the faith was adhered to ; or 
was it because the whole compact body of the English 
Church, in all its integrity — as far, and in every particular as 
far, as it was not necessarily, or by express enactment, 
changed, was continued and perpetuated ? 

That Church comprehended, as integral portions of its 
very existence, not merely Articles and Liturgy, but laws 
and canons for discipline and rule. On what possible ground 
can this identity be asserted, if the latter important funda- 
mental element of identity, is discarded ? 

Again, Another argument may be used which strikes me 
as of great weight. It is stated by the highest authority, 

I add a passage from the argument of Mr. Emmet, in the case of 
the Rev. Cave Jones, (Report of the Case, &c, p. 493. New-York, 
1813,) <: No man could be permitted to say, that nothing was permitted 
or restrained as to any particular matter in a newly erected state, 
since its own immediate legislature had passed no law or ordinance 
respecting it. The answer would be — the law which regulates it is 
prior to the existence of our state; it comes to us by inheritance from 
our fathers, and we brought it with us into this association. So it is 
with- our ecclesiastical government. In organizing and becoming 
members of the Protestant Episcopal Church in America, no one con- 
sidered himself as becoming a member of a new religion, or as adopt- 
ing a different form or rules of ecclesiastical government, except so 
far as depended upon the connection in England between Church and 
State, and the regulations in that country produced by the king's 
being the head of the Church. These were all necessarily rejected as 
being inapplicable to our situation; but in every other respect, the 
rules and laws of our Mother Church, where they can be applied, are 
the common law of our own religious association." 



INTRODUCTION. 39 

that "in every Church, whatever cannot be clearly deter- 
mined to belong to doctrine, must be referred to discipline ; 
and that this Church was far from intending to depart from 
the Church of England in any essential point of doctrine, 
discipline, or worship, or farther than local circumstances 
require." 1 

Let us ascertain what is the sense of the term " disci- 
pline," when used in ecclesiastical writings. 

It has, I apprehend, two meanings: First, The adminis- 
tration of punishment for offences. Next, The regulation and 
government of the Church. " The following passage from Bishop 
Gibson affords an illustration of the first meaning. " The very 
office of consecration, so often confirmed by parliament, war- 
rants every Bishop, in the clearest and fullest terms, to claim 
authority by the Word of God, for the correcting and punish- 
ing of such as be unquiet, disobedient and criminous, i. e., for 
the exercise of all manner of spiritual discipline." 2 

The other meaning is of more importance to the present 
argument. In the preface to the English Book of Common 
Prayer (2d and 5th Ed. VI., " Of Ceremonies, why some be 
abolished and others retained,") is the following clause : "Al- 
though the keeping or omitting of a ceremony, in itself con- 
sidered, is but a small thing, yet the wilful and contemptuous 
transgression of a common order and discipline is no small 
offence before God." 

Again. "And, besides, Christ's Gospel is not a ceremonial 
law ; but it is a religion to serve God, not in the bondage of 
the figure or shadow, but in the freedom of the spirit, being 
content only with those ceremonies which do serve to a decent 
order and godly discipline." 

The Book of Common Prayer received some alterations 
after the accession of James, and in the proclamation of that 

1 Preface to the Book of Common Prayer, 16th October, 1789. 
Q Gibson's Codex, vol. 1, p. 18. 



40 INTRODUCTION. 

monarch is the following sentence : " And now, upon our 
entry into this realm, being importuned with informations of 
many ministers, complaining of errors and imperfections in 
the Church here, as well in matter of Doctrine as of Dis- 
cipline, foe.'' 1 

And in the statute (13th-14th Charles II., § 1,) the pub- 
lication of all books bringing into contempt the Doctrine or 
Discipline of the Church of England is prohibited. 

Bat I do not find any where a passage more admirably il- 
lustrative of this subject, than in the preface to the Canons of 
the ScottishChurch, adopted in 1839. " The doctrines of the 
Church, as founded on the authority of Scripture, being free and 
immovable, ought to be uniformly received and adhered to, in 
all times and all places. The same is to be said of its govern- 
ment, in all those essential parts of its constitution which 
were prescribed by its adorable Head. But in the discipline 
which may be adopted for furthering the purposes of eccle- 
siastical government, regulating the solemnities of public wor- 
ship as to time, place and form, and restraining and rectify- 
ing the evils occasioned by human depravity, this character of 
immutability is not to be looked for." 2 

Now, what did the discipline of the English Church com- 
prehend ? It embraced the establishment and prescription of 
the Book of Common Prayer, to be used throughout the realm ; 
the adoption by ministers of, and subscription to the articles of 
faith ; the regulation of rites and ceremonies by canons and 
rubrics ; and just as much, just as fully and absolutely, did 
it comprise the whole body of ecclesiastical law by which the 

1 Statutes at Large, vol. 2, p. 438. 

9 Apud Burns 7 Ecc. Law, by Phillimore, vol. 415. Hooker thus 
uses the term, " As we are to believe forever the articles of evangelical 
doctrine, so the precepts and discipline we are in like sort bound for 
ever to observe." 

The following occurs in an oration of Cicero, '-Hsec igitur est tua 
Disciplina, sic tu instituis adolescentes ? " — Pro Ccelo. 



INTRODUCTION. 41 

Church, in all other particulars, was controlled and directed. 
That this whole body of discipline was the rule of the colo- 
nial Church, with the unavoidable qualifications before ad- 
verted to, is a point which admits not of dispute. 

"When, then, we find our Church declaring, in one of its 
most solemn acts, that all which is not of doctrine is of dis- 
cipline ; that she meant not to depart from the Church of 
England in doctrine or discipline, farther than local circum- 
stances required ; when we find that the body of English ec- 
clesiastical law was an undoubted part of discipline in that 
Church and in the colonial Church ; when we find no discrim- 
ination made between what of discipline is binding and what 
is annulled, the conclusion seems irresistible, that this law, 
with necessary modifications, retained the same authority after 
the revolution which it possessed before. 

And what advantage can we reap by severing the tie with 
the Church of England, in this particular, when the wisest of 
our fathers cherished the connection in every other, as the 
pillar and foundation of truth ? Far from their thoughts and 
feelings was that pride of isolation and arrogance of judgment, 
which would treat the Catholic Church as the newly-reared 
fabric of its members will ; " as if it were a body in itself, in- 
debted to no one, related to no one, without fathers, without 
brethren — as if it had fallen, like the Roman sacred shield* 
immediately from Heaven." 

And what advantages do we not lose, when we disclaim 
this healthful and time-honored union ? Looking at the ques- 
tion merely as a lawyer and searcher for truth, we abandon, 
(and for a dim untrodden path,) the road illumined by the 
shining lights of English intellect in the Church and on the 
bench. For our instruction and guidance we have the well- 
known names of Coke, Holt and Hardwicke, of Nichols, 
Stowell and Lee, in the tribunals of justice ; of Ridley, Gib- 
son, Stillingfleet, and a cloud of others, among the English 



42 INTRODUCTION. 

canonists. Under their auspices, we shall find " happier 
walls" than our own abilities can rear, or our own fancies can 
devise. Here we may attain to certainty,^ the mother of 
quietness and repose. 

What then is that English ecclesiastical law whose in- 
fluence it is presumed is now felt in our Church ? That 
question is best answered by quoting the doctrines and deci- 
sions of English jurists ; and I deem the subject of such 
importance as to incur the charge of prolixity in stating them. 

In the 25th year of Henry the VIII. , in the act for the 
punishment of heresie, is a preamble setting forth the great 
grievance which the generality of the words in Popish de- 
crees and acts produced, " and that the most learned and ex- 
pert man of the realm, diligently lying in wait upon himself, 
cannot eschew and avoid the penalty and dangers of the same." 1 

To prove the inconsistency of many of these laws 
with the laws of the land, Archbishop Cranmer had drawn 
together many citations from the body of the Canon Law. 
His compilation is to be found in Burnet's History of the Re- 
formation.' 2 

And the Preface to the Reformatio Legum has the follow- 
ing striking passage: — "Leges Le gibus, Deer eta Decretis, 
ac Us insuper Decretalia, aliis alia atque item alia accumulet, 

1 Codex, vol. 2, p. 997. 

2 Hist. Reformation, p. 257. Appendix. The articles enumerated 
are chiefly those which relate to or assert the Pope's absolute authority. 
One of them is very singular, " Every man must obey the canons and 
laws of the Pope, but the Pope and his conduct can be observed upon 
by no man : nay though his sins destroy his own soul and be the means 
to draw thousands into hell, yet can no man question his conduct." 

Wickliffe must have had some such extragavance in his mind 
when he wrote as follows: — " Ecclesiasticusimo, et Romanum Pont if ex 
potest legitime a svbditis et Laicis corripi et etiam accusari." (Conelu- 
siones J. Wickliffe apud Constitutiones Provinciales. Oxford Ed., J. 
Lynwood and John De Athon. 1679. Addenda, p. 58. Anno 1378.) 



INTRODUCTION. 43 

ne cullum pene statuit cumulandi finem^ donee tandem suis 
Clementinis, Sextinis, Intra et Extravagantibus, constitution- 
ibus provincialibus et Synodalibus, Paleis, Glosulis, Senten- 
tiis, Capituliis, Summariis, Rescriptis, Breviculis, Casibus 
long-is et brevibus, ac infinitis Rhapsodiis adeo orbem confor- 
cinavit, ut Atlas mons, quo sustineri caslum dicitur huic (si 
imponeretur,) oneri vixferendo suffice?' et" 1 

Dawson, in his elaborate work on the Origin of Laws, 
says, p. 35, " But afterwards, a new sort of common law 
began to take place, which thrust and crowded out the other, 
viz., that of the Decretals, Capitulars, Clementines and Ex- 
travagants, and I know not what beside. Its first appearance 
was about the year 836, as De La Marca saith, and Pope 
Nicholas countenancing it, it quickly prevailed over all the 
provinces of the west. In very deed, the true and real canon 
law is lost among the many voluminous heaps of what falsely 
bears its name ; and the canons of General Councils are 
buried under the rubbish of decretals of Popes ; which made 
an ingenious author, about the year 1046, in a comparison 
between the Churches of the East and West, to say, " In the 
Greek Church are many Canonists, and in the Latin Church 
are no Canonists, but many Decretalists." (Book I., cap. 15.) 
By the act 25 Henry VIII., c. 19, a Declaration of the 
clergy was recited, that many of the constitutions, ordinances 
and canons, provincial or synodical, were contrary to the 
laws and statutes of the realm, repugnant to the king's pre- 
rogative, and onerous to the subject ; and the king was au- 
thorized to appoint thirty-two persons, half clergymen and 
half laymen, out of the two Houses of Parliament, "to view, 
search and examine the canons, constitutions, ordinances, 
provincial and synodal, theretofore made, not contrariant or re- 
pugnant to the laws and customs of the realm and the pre- 
rogative royal." 

LPrefatio Ed. 1640. 



44 INTRODUCTION'. 

It was also provided that " such canons, constitutions and 
ordinances being already made not contrariant or repugnant 
as aforesaid, should be used and executed as they were afore 
the making of the act, till such time as they be otherwise 
ordered by such thirty-two persons." 

So by the 21 chap, of Henry VIII. it is declared, that " the 
people of the realm had bound themselves by long use and 
custom to the observance of certain laws, not as the laws of 
any foreign prince or prelate, but as the customs and ancient 
laws of the realm, established as laws by the said sufferance, 
consent and custom." 

By the statutes of 27 Henry VIII., c. 15, and 35 Henry 
VIII. , c. 16, the authority of the commissioners was success- 
ively renewed, and again by the Act 3 and 4 Edward VI., cap. 
11. A portion of this last act deserves attention. By the 
first section it was enacted, that the king should have power 
and authority to appoint the thirty-two persons to compile 
the laws, and by the fourth section nothing in the act was to 
be construed to give powers to those persons, or to the king-, 
to compile, publish, or set forth any ecclesiastical laws re- 
pugnant or contrary to the common law or statutes of the realm. 

The work was compiled, but did not become a law, in 
consequence of the death of Edward. Ineffectual attempts 
were afterwards made to revive and establish it. 

We shall see how the principle announced in the statute 
prevails through all the leading authorities which I shall now 
cite : — 

Pope Gregory, in writing to St. Augustine, says : " We 
are not to love customs, on account of the place from whence 
they come, but let us love all places, where good customs are 
observed. Choose, therefore, from every Church whatever is 
pious, religious, and well ordered ; and, when you have made 
a bundle of good rules, leave them for your best legacy to the 
English. 1 

! Churton's Early English Church, p. 43. 



INTRODUCTION". 45 

Chief Justice Hale — " I conceive that, when Christianity- 
was first introduced into this land, it came not without some 
form of external ecclesiastical discipline or coercion, though 
at first it entered into the world without it ; but that external 
discipline could not bind any man to submit to it, but either 
by force of the supreme civil power, where the governors re- 
ceived it, or by the voluntary submission of the particular 
persons that did receive it ; if the former, then it was the civil 
power of the kingdom which gave that form of ecclesiastical 
discipline its life ; if the latter, it was but a voluntary pact or 
submission which could not give it power longer than the party 
submitting pleased ; and then the king allowed, connived at, 
and did not prohibit it ; and thus, by degrees, introduced a 
custom whereby it became equal to other customs or usages. 1 
In Cowdry's case, (5 Coke's, Rep. 33,) Lord Coke says : 
" So albeife the kings of England derived their ecclesiastical 
laws from others, yet so many as were proved, approved and 
allowed herein, and with a general consent, are aptly and 
rightly called the king's ecclesiastical laws of England." Jus- 
tice Whitlock, in Evans v, Owen, (God. Rep. 432,) observes: 
" There is a common law ecclesiastical, as well as our common 
law, jus commune ecclesiasticum> as well as jus commune 
laicum." 

The case of the commendams in Sir John Davies' Reports, 
696, &c, is full of valuable learning, on this and other topics. 
The actual question was, whether an appointment to a 
Bishopric vacated per se all inferior benefices ; and two cases, 
from the year books in the reigns of Henry IY. and Richard 
III., were cited to prove the position. A statement is then 
made as to the time and manner of introducing the body 
of the canon law into England ; and it is inferred, especially 
from a passage of Roger Bacon, that it first came in [under 
Stephen, about 1150. The gradual efforts of the Popes to ex- 

1 Cited by Lord Hardwicke, 2 Atkyns, 699. 



46 INTRODUCTION. 

tend its influence, as well over the laity as the clergy, are 
then fully detailed. The report proceeds : " A long time be- 
fore the canon law was authorized and published, (which was 
after the Norman Conquest, as was before shown,) the ancient 
kings of England, viz., Edgar, Alfred, &c, have, with the 
advice of their clergy in the realm, made divers ordinances 
for the government of the English Church; and, after the 
Conquest, divers provincial synods have been held, and many 
constitutions made, in both the realms of England and Ire- 
land ; all which are part of our ecclesiastical law at this day." 
And so, in Evans v. Ascaith (Willm. Jones' Rep. 160,) it was 
declared that no foreign canons bind here except such as have 
been received, but, being received, they become part of our 

laws." And, in Shute v. Yaughan, p. 132, upon a 

question of a cession of one benefice, by promotions to another, 
it is laid down, that the ancient canon law received into this 
kingdom, is the law of the kingdom in such cases. 

I know of no authority in which the rule upon this subject 
is stated with more precision and accuracy, than in the opinion 
of Chief Justice Tindal, in the Queen v. Mills (10 Clarke & 
Finally, 678). "I proceed in the last place to endeavor to 
show, that the law by which the spiritual courts of this king- 
dom have from the earliest time been governed and regulated, 
is not the general canon law of Europe, imported as a body 
of law into this kingdom, and governing those courts proprio 
vigore ; but instead thereof an ecclesiastical law, of which 
the general canon law is no doubt the basis, but which has 
been modified and altered from time to time by the ecclesias- 
tical constitutions of our Archbishops and Bishops, and by the 
legislature of the realm, and which has been known from 
early times by the distinguishing title of the King's Ecclesias- 
tical law. That the canon law of Europe does not, nor never 
did, as a body of laws, form part of the law of England, has 
been long settled and established." 



INTRODUCTION. 4.* 

So Lord Abinger (Ibid. 745.) "My noble and learned 
friend (Lord Brougham) seems to consider that the ecclesias- 
tical law of E no-land is to be derived from the ecclesiastical 
law of the continent. I beg to observe, that he has not at all 
satisfied my mind upon that part of the argument. The 
learned judges have, I think, satisfactorily derived it from the 
constitutions of the synods and councils in England, before 
the authority of the Pope was acknowledged in this country. 
I take that part only of the foreign law to be the ecclesias- 
tical law of England, which has been adopted by Parliament 
or the courts of this country." 

And Lord Cottenham, in his opinion, (p. 876.) thus ex- 
pressed himself: "It is expedient, therefore, to ascertain as 
far as possible, what rules were prescribed to the ecclesiasti- 
cal courts by the authorities within this realm ; and if it shall 
appear that before the time at which the canon law is stated 
to have been introduced into this country, that is, before 1290, 
there were laws existing which regulated the proceedings and 
decisions respecting marriages, and which do not appear after- 
wards to have been altered, it must be of more importance to 
look to such laws, than to the rules of the general civil or 
canon law: and it appears that, there were such laws, and 
that by them the intervention of a person in orders was neces- 
sary to constitute a valid marriage. The Institutes of Ed- 
mund direct that at a marriage 'there shall b<- a Ma^s Priest 
present, who shall bless the nuptials to all prosperity.' And by 
a constitution of the Council of Winchester, in the time of 
Archbishop Lafranc, (1076,) it was declared that a marriage 
without the benediction of a Priest, should not be a legitimate 
marriage. I see no reason to doubt the authenticity of these 
ancient ordinances; and if genuine, they establish the fact, 
that from the earliest times the laws of England differed upon 
this subject from the civil and canon law, ami required the 
interposition of an ecclesiastical authority to make a valid 



48 INTRODUCTION. 

A more extended consideration of the laws of the English 
Church, at different stages of its history, will aid our inquiry. 
And there are four great periods, during each of which the 
laws received a strong and a distinct impress and character 
from political and civil regulations. 

First. The first period comprises the time from the planting 
of Christianity to the coming of St. Augustine ; the second, from 
that time to the Conquest ; the next, from the Conquest to 
the Reformation ; and the last, the period since that event. 

It is not necessary to enter into any minute statement of 
the few memorials of history daring the first period. It is 
sufficient to say, that it is proven there were bishops in Eng- 
land in the year 314. Three of them attended the Council of 
Aries of that year ; others were at Sardica in 347 ; and at 
Rimini in 359/ It has been claimed that the Pope, during 
the Pelagian controversy, at the beginning of the 5th century, 
sent a delegate into England to keep it to the faith. The 
account of Bede is, that the British applied to the prelates of 
Gaul for aid ; that they held a great synod, and elected Ger- 
manus and Lupsus to proceed to England. 2 

Without attempting to detail the scanty records of that 
period, I cite a statement of an eminent writer of England, 
upon this subject : 

Dawson, in his Origin of Laws, after stating various histo- 
rical matters respecting the Church, in the first six centuries, 
thus concludes (Book vi. cap. 4): "From all which put to- 
gether and well considered, these four things are plain and easy 
to be observed. First, That the Britannic Church had its 
ancient laws and customs; and, by consequence, had an es- 
tablished way and form of Church government long before 
those days, (the coming of St. Austin.) Secondly, that it was 

1 Stillikgfleet Orig. Britt, cap. 2, p. 76. Kemble's Saxons in 
England, vol. 2. p. 355. 
•Ibid. 366, note. 



INTRODUCTION. 49 

held unlawful for them to change or alter any of these laws 
or customs sine consensu suorum, as Bede (expresses it) : sine 
consensu suce gentis, as Alfred {says) ; and, by consequence, 
that all ecclesiastical matters were "determined among them- 
selves, and within the boundaries of their own nation, and not 
in any wise subject to any foreign jurisdiction. 

Thirdly, That the way which was used by them, for the 
determining of such matters, was that of a national synod. 

And, lastly, that the usual members of these synods were 
optimates suorum, et alii viri docti, by which we suppose to 
be meant their bishops and other learned men of the cjergy ; 
because Bede tells us, in the very next sentence, that when 
the business about calling another synod was agreed on, there 
met together, in a synod, seven bishops and many other very 
learned men." (Book vi. cap. 5.) 

Second. St. Augustine arrived in England in the vear 596. 
From that time down to the Conquest, there is a variety of 
original documents in existence, which have. enabled the his- 
torians of the Church to trace its history and institutions with 
reasonable precision, and throw great light upon the canons 
and law then prevalent. 

Thus, in the preface to the Reformatio Legum, it is stated: 
Sic neque Anglice nostra jam olim legum deer eta sapienter a 
prudentissimis majoribus constituta. Declarant id Bract- 
honis nomethetica Ince Regis, Edwardi senioris, Aethelstani, 
Eadmundi, Eadgari, Aluredi, Ethelredi, Canute, cceterorum 
que principum auspiciis instituted sanctiones. Quce leges 
quamdiu suam tueri authoritatem potuerunt, viguit aliqua 
saltern in hoc regno morum disciplina. 

The labors of the Record Commission of 1821, have thrown 
great light upon the antiquities of English law. In the vo- 
lume called the "Ancient Institutions of England," are pub- 
lished the laws of the Saxon kings, and other important docu- 
ments. The compilers, in a note, p. 4, distinguish between 



50 INTRODUCTION. 

the Laws, whether upon temporal or spiritual subjects, and 
other Institutions. They term the latter Monumenta Eccle- 
siastica, anil print them separately. 

The laws relate in many particulars to the affairs of the 
Church. For example, that regulation which governed as 
much as any authority, the decision in the Queen v. Mills, in 
1846, that the presence of a priest was necessary to a lawful 
marriage, is found among the laws of king Edmund in the 
year 940 : " at the nuptials there shall be a Mass Priest by 
law, who shall, with Grod's blessing, bind the union to all 
prosperity." 

Now all those of the Saxon Institutions which were termed 
Laws, were made at the great Couucil or Witenagemote of 
the realm, at which there was such a representation of the 
laity as the times admitted. 1 

But among the Monumenta, is a work called Liber Peni- 
tentialis, of Theodore, Archbishop of Canterbury. This con- 
sists of a full code of regulations respecting penance, made in 
the year 669, and by the authority, it would seem, of the 
Archbishop alone. So in the Capitula, cap. 38, it was pro- 
vided, that any presbyter who should have obtained a parish 
by means of a price, is absolutely to be deposed, seeing that 
he is known to hold it contrary to the discipline of ecclesias- 
tical rule. Also, it is to be forbidden both to clerks and laics, 

1 The prefix to the laws of king Inae, runs thus : Ci Ego Inae, &c, Rex 
exhortatione et doctrina Curedis Patris mei, et Heddes Episcopi mei, 
et Escenwaldes Episcopi mei } et omnium Aldermanorum meorum, et 
Seniorum sapientum regni mei, multaque congregatione servorum Dei, 
constitui rectum conjugium et justa judicia pro stabilitale," &c. (Re- 
cord Commission, 498.) 

The laws of Edgar begin: "This is the ordinance which king 
Edgar, wit!) the Council of his Witan ordained. 7 ' And those of Ed- 
mund : "Edmundux Rex congregavit magnum Synodum Dei ordinis, 
et seculi apud Lundonie civitatem, cui intermit (Eda et Wulstanus 
Archepiscopi, et alii plures Episcopi, perquirentes de consilio animarum 
nostrarurn et eorum qui subditi sunt illis." 



INTRODUCTION. 51 

that no one shall presume to give any church whatever to a 
presbyter, without the license and consent of the Bishop. 

In 673 was held the Synod or Gemote of Hertford, under 
Archbishop Theodore. By the seventh article, similar meet- 
ings were to be held twice a year. It is said by Dr. Burns, 
that this was one of the few National Councils held in Eng- 
land. 

In 680, a Gemote was held at Had field, in the presence of 
the kings of Northumberland, Mercia, East Anglia, and Kent. 
Several ecclesiastical acts were made, and at the same time a 
Witenagamote was held, probably, it is said, to sanction the 
decision of the clergy. 

I quote this from Kemble's Saxons in England, vol. ii. 
263, who refers to Bede, book 4 and 5. 

In 742, a great council was held under Edelbend of Mer- 
cia, and Cudbeorht, Archbishop of Canterbury. Its acts are 
signed by clerks and laymen respectively, and it was clearly 
a Witenagemote. 

In 787, 793, 794 gemotes were held at various places, 
which are termed convenlus synodalis, concilium, and con- 
cilium synodale. In 798 a gemote, also called synodus, was 
held, in which the business recorded was merely secular. 
Before the signatures occur the words, " Haec sunt nomina 
Episcoporum ac principum qui hoc mecum in synodo con- 
sentientes subscripserunt." The signatures comprise the 
names of several laics, and Mr. Kemble considers this a proof 
that the term synodus was not confined to ecclesiastical 
meetings. 

There is one document among the Monumenta which 
merits particular notice. King Alfric addresses Bishop Wul- 

1 See Kemble's Saxons in England, vol. ii., p. 263. He cites Bede, 
to the point that Theodore was the first Archbishop whose authority 
was universally acknowledged in England. Lord Coke says that a 
Synod was termed, in Saxon times, a Church Gemote. 



52 INTRODUCTION. 

funus thus, (p. 441,) "Alfricus, an humble brother to the 
venerable Bishop "Wulfunus : Peace in God. Obtemperavi- 
mus jussioni tuse libenti animo, sed non ausi fuimus aliquid 
scribere de Episcopali gradu, quia vestrum est scire quomo- 
do vos oportet optimis moribus exemplum omnibus fieri, et 
continuis admonitionibus subditos exhortari ad salutem quEe 
est in Christo Jesu. Dico tamen quod ssepius deberetis vestris 
clericis alloqui. Nos vero scriptitamus hanc epistolam quse 
Anglice sequitur quasi ex tuo ore dictata sit et locutus esses 
ad clericos tibi subditos, hoc modo incipiens." Then follow 
various injunctions to the clergy. 

From these citations there is ample reason to conclude, 
that a great principle of the Saxon Church was that which 
we find so strongly asserted in later times, viz., that while the 
councils of the clergy were sufficient to establish laws for the 
government of the clergy, yet where the laity were concerned, 
they must have been passed or ratified by the Witan, in which 
a representation of that order existed. 

And accordingly, a very learned writer thus expresses 
himself, " Even so in the Saxon times, if there was any sub- 
ject of laws for the outward peace and temporal government 
of the Church, such laws were properly ordained by the king 
and his great council of clergy and laity intermixed, as our 
acts of parliament are still made. But if there was any doc- 
trine to be tried, or any exercise of pure discipline to be re- 
formed, then the clergy of the great synod departed into a 
separate synod, and there acted as the proper judges ; only 
when they had thus provided for the state of religion, they 
brought their canons from the synod to the great council, to 
be ratified by the king with the advice of his great men, and 
so made the constitutions of the Church to be the laws of the 
realm. And the Norman revolution made no change in this 
respect. Thus the case stood till the act of submission of 
25th Henry VIII. 1 

1 Kenneth Ecclesiastical Synods, p. 249. 



INTRODUCTION. 53 

I gather also that the instances I have quoted of the acts 
of archbishops singly, were merely monitions and counsels, of 
great weight and authority indeed, but not partaking of the 
character or force of laws, obligatory even upon the clergy. 

Third. But the year 1066 brought the Conqueror to England. 
His banners had been blessed by the Pope, and gratitude and 
policy led him to assist in the subjugation of the liberties of 
the English Church. Then commenced an earnest contest, 
the history of which may be read in the statutes at large as 
profitably as in any records of history. Few labors would be 
more interesting, and few better adapted to serve and il- 
lustrate the cause of the true, the primitive, the unshaken 
Anglican Church, than to trace its struggles in the acts of 
parliament. But Lmust be content with a passage from the 
opinion of the court in a celebrated case where this subject 
was largely discussed. u Let us look further, and see whether 
the former laws made by King Edward the first and Edward 
the third against the usurpation of the Bishop of Rome, were 
not grounded upon the like cause and reason. The statute 
38 Edward III., expressing the mischief that did arise by 
breves of citation, which drew the bodies of the people, and 
by bulls of provision and reservation of ecclesiastical bene- 
fices, which drew the wealth of the realm to the court of 
Rome, doth declare — that " by these means the ancient laws, 
customs and franchises of the realm were confounded — the 
crown of the king diminished and his person defamed — the 
treasure and riches of the land carried away — the subjects 
molested and impoverished — the benefices of holy Church 
wasted and destroyed — and divine service, hospitality, alms 
deeds and other works of charity neglected." {Case of Prae- 
munire, Sir John Davies, Rep. 86.) 

The legislation of the Church after the Conquest to the 
Reformation, (exclusive of the acts of parliament,) is con- 
tained in the legatine and provincial constitutions. The for- 



54 INTRODUCTION. 

mer are to be found in the ordinances of Otho and Othobon, 
commented upon by John of Athon ; the latter, in the nume- 
rous constitutions of the Archbishops, collected by Lynwood, 
with his glosses upon them. 

It is true that, as a partial concession to England, the 
Popes constituted the Archbishops of Canterbury their Legates, 
so that they ultimately became known as Legati nati ; but 
their provincial regulations were binding, not because they 
were Legates, but because they were Archbishops holding 
provincial synods. There is much reason to believe that the 
laws of the legates Otho and Othobon, were not regarded as 
obligatory without some recognition in the councils, or that 
they had become ratified by use and custom. 

Bishop Stillingfleet, in many instances, speaks in this 
manner: " By the old provincial constitutions, (which are 
still in force so far as they are not repugnant to the laws of 
the land,) those who have the smallest cures are called pas- 
tors," &c. 

" Our' authority herein is not derived from any modern 
constitutions or canons of the Church, (although due regard 
ought to be paid to them,) but from the ancient ecclesiastical 
common law in this realm, which still continues in force. 
There is a common law ecclesiastical, which although in 
many things it may be the same as the canon law which is 
read in the books, yet it hath not its force from any papal or 
legatine constitutions, but from the acceptance and practice 
of it in our Church. I could easily show, if the time would 
permit, that papal and legatine constitutions were not re- 
ceived here, although directed hither ; that some provincial 
constitutions never obtained the force of ecclesiastical laws." 
(Duties and Rights of Parochial Clergy, p. 48.) At page 249, 
the Bishop enumerates a number of papal canons which had 
not been adopted into the law of England. 

Bishop Gibson (Codex, preface, p. 28,) cites two cases, one 



INTRODUCTION. 55 

from the constitutions~of Otho, and the other from Othobon, 
as not recognized in English law. One of them is of so much 
importance that I extract it in full in the noie, with John of 
Athon's gloss, and the constitution of Stephen upon the same 
subject, with the gloss of Lynwood. 1 

The substance of the authorities stated in the note, is this : 
The regulation (a provincial regulation) of Archbishop Ste- 
phen, in 1222, declared that rural Deans should not have ju- 
risdiction in matrimonial cases ; but directed that it should be 
committed viris discretis. Lynwood insists that under this 
phrase a cause might be specially delegated by the Ordinary 
to a rural Dean, if a discreet person, as well as to any other 
person thus qualified. But the constitution of the legate 

1 The constitution of Othobon, (1268,) is this. — u De delegatione 
causarum — Proinde sacris canonibus inheerentes quibus statutum est, 
ut non nisi personis in majori statu constitutis causae a Sede Apostolica 
delegentur, eadem juris aucthoritate commoti statuimus, ut ab Archi- 
episcopis, Episcopis, vel aliis ordinariis non nisi personis in dignitate 
vel officio constitutis, aut cathedralium vel aliarum ecclesiarum colle- 
gialarum canonicis causae aliquatenus committantur." 

Lynwood, in his Comment on the Constitution of Stephen, (1222,) 
De judiciis, lib. ii. tit. 1, as to the phrase viris discretis, says: u Sed 
nunquid Decanus ruralis ex commissione speciali possit cognoscere in 
causa matrimoniali si sit vir discretus et jureperitus? Puto quod sic; 
praesertim si talis commissio non concernat ejus officium principaliter, 
sed potius ejus circumspectionem et prudentiam. Sed contra hoc op- 
ponitur ea quae leguntur in constitutione Othoboni, " Judicii Robur," 
(the above cited constitution,) ubi statuitur quod causae non commi- 
tantur nisi personis in majori statu, &c. Solutio : ilia constitutio non 
fuit a subditis acceptata, ut dicet ibi Jo. de Athona; unde non videtur 
arctare ; ad quod vide ibi Remissiones. Et hoc verum maxime cum 
de jure communi ordinarius quilibet in causarum cognitionibus com- 
mittere valeat vices suas, his qui peritiam et exercitium in talibus 
habent." 

Now this constitution of Stephen, in 1222, runs thus: — " In causis, 
et infra, statuimus ut Decani rurales nullam causam matrimonialam 
de ccetero audire praesumant, sed earum ^examinatio non nisi discretis 
viris co^lmrttatur. ,, 



56 INTRODUCTION. 

Othobon, in 1268, plainly forbade this. This'constitution was 
held not to be binding in the realm, because not accepted, and 
therefore the former regulation was the law. 

It becomes important to understand the meaning of the 
term subditis, in these constitutions. G-enerally, I apprehend, 
it signifies the inferior clergy ; but on other occasions, it em- 
braces all who are subject to the enacting power. Now, 
when we find that a constitution of a Legate is pronounced 
not binding because not received, the question is, by whom 
it could be received so as to give it authority ? And this, it 
is presumed, must have been by the Archbishops and Bishops 
in the provincial councils. 1 

There was a constitution of Otho, (1237,) followed by one 
of Othobon, (in 1208,) prohibiting leases of Church lands for 
more than five years. But in a constitution of John of Strat- 
ford, in 1342, it is recited, that the religious and others of 
the province (Canterbury) assert, that those constitutions 
were not binding upon them; and it was then declared that 
all persons violating that, or the present constitution, should 
be subjected to punishment. (Constitutiones Provinciales, &c, 
p. 44. Ed. of Lynwood and John of Athon, 1689.) 

Again, as to the operation of provincial constitutions, it 
was laid down by Newton, in the case of the Prior of Leeds, 
20 Henry VI. 12, (1441,) cited by Lord Hardwicke, that the 
Ordinary by his convocation had power to make constitutions 
provincial, by which ceux de Sainte Eglise shall be bound; 
yet they cannot do anything which shall bind the temporalty. 

In the Abbot of Waltham's case, 24 Ed. IV., the same 



f Y l Shakespeare, the warmest of patriots, had a correct notion of 
canon law. Surrey says to Woolsey :—r 

"You wrought to be a Legate, by which power 
You maimed the jurisdiction of all Bishops." 

(Henry VIII., Act 3 2.) 



INTRODUCTION. 57 

doctrine was insisted upon in argument; and it was urged 
that the convocation among the clergy was as powerful, as 
the parliament among persons temporal, because every abbot, 
prior and beneficed clerk, is privy and party to the convoca- 
tion. The case went off on another ground. 

lS T ow Lynwood was employed in offices of distinction in 
the reign of Henry V., and died in 1446, the 25th year of 
Henry VI. The decision, therefore, in the 20th year of that 
king, could scarcely be expected to find a place in his work. 

Chief Baron Gilbert says: " The project of Edward the 
First (abo#t 1290,) was to have the clergy as a third estate ; 
the Bishops and a sufficient body of clergy to sit together and 
make canons to bind the ecclesiastical body ; and his great 
object was to get the sanction of this assembly to taxes and 
assessments upon the clergy. The latter insisted that they 
could not meet under a temporal authority to make laws for 
the Church. The Bishops and Archbishops were loth that 
the clergy should be allowed to share in the making of canons 
which formerly were made by their sole authority; for even 
if these canons had been made at Rome, yet, if they were not 
made in a general council, they did not think them binding 
here, unless they were received by some provincial constitu- 
tion of the Bishops." (Burns, vol. ii. p. 22, citing Gilbert's 
Exchr.) 

The subsequent passages show how the scheme was de- 
feated, and it resulted in the convocations separately called 
in the provinces of Canterbury and York. They show, also, 
the resistance of the clergy to the assumption that the prince 
had any authority to convene synods ; and illustrate the ques- 
tion whether the Act of Submission (25 Henry VIII., chap. 10,) 
was not a surrender of the liberties and rights of the clergy, 
not the recognition of a valid authority. This point has been 
strongly contested. Bishops Gibson and Stillingfleet are on 



53 INTRODUCTION. 

the one side, and Lord Coke and Justice Foster on the other. 
In my judgment, the great churchmen have overmastered the 
great lawyers. 

The learned Spelman, in his treatise " De Sepultura," 
(p. 179,) says : " The canon law as adopted here — the national 
and provincial councils, — all these together, as they have been 
heretofore in use, and are not repugnant to the laws and re- 
ligion of the kingdom, or repealed by the statutes of Henry 
VIIL, or of later times against papal usurpation, are still in 
force, as I conceive." 

Again — Let the decision in Middleton v. Crofts (2 Athyns,) 
be closely examined. The question arose upon an article in 
the ecclesiastical court, for being married out of canonical 
hours, without license or banns, and in a private house. A 
prohibition was applied for, upon which occasion Lord Hard- 
wicke delivered his celebrated opinion. 

First. It was decided that the canons of 1603 (which 
were very express to the point) did not govern the case, be- 
cause they did not bind the laity, for want of a representation 
in making them. 

Secondly. The second question is thus stated by Lord 
Hardwicke himself: " If lay persons cannot be prosecuted or 
punished by force of these canons, whether the court had ju- 
risdiction of such a cause against them by the ancient canon 
law, received and allowed within the realm of England ?" 

And the Third question was whether, assuming that the 
spiritual court had such jurisdiction, it had been taken away 
by certain statutes inflicting a penalty ? 

The first point being decided, as above stated, the court 
determined the case and refused the prohibition on the sec- 
ond ; and then held that the statutes referred to in the third 
did not take away jurisdiction. 

The ground of the decision of the second point becomes, 
therefore, very important. Lord Hardwicke says, " It re- 



INTRODUCTION. 59 

mains to be inquired whether that part of the canon law 
which prohibits clandestine marriages hath been received 
and allowed in England." 

" The canons of the Council of Lateran in the decretals 
cum Inhibito, which contain a general prohibition against 
clandestine marriages, and require publication of the banns 
by a minister in the Church, were adopted into the canons of 
the Church of England by the convocation held at London in 
the year 1328. Lynwood, Lib. 4, Tit. 3, De Clandestina 
Dispensations, says : " It inflicts the punishment of suspen- 
sion on the clergyman for three years, offending by celebrating 
clandestine marriage," and then adds, " Et hujusmodi con- 
trahentes poena debita percellendo." Lynwood in his G-loss., 
on the phrase poena debita, explains it thus : u Erit arbitraria 
cum non exprimatur. Hodie vero sic contrahentes (ut aliqui 
vol unt) sunt ipso facto excommunicati ; so that he took it 
that the contracting parties marrying clandestinely were 
liable to the punishment of excommunication." 

Lord Hardwicke then states that Dr. Andrews had cited 
many entries from the Registry of Canterbury, showing that 
the jurisdiction of proceeding by ecclesiastical censures for 
marrying clandestinely had been received and allowed in 
England; and he adds that a long course of such precedents 
would be of great weight in a case of this nature, though a 
few instances would not, because they might have passed 
sub silentio. 

His lordship then cites the case of Maltingby vs. Martin, 
1 Jones, 257, as in point ; and refused the prohibition, except 
so far as related to proceeding for marrying at an uncanonical 
hour, which being solely forbidden by the canon of 1603, was 
not a violation of a law binding upon the layman. 

In considering this subject, great attention must be paid 
to the distinction between the statute 25 Henry VIII. cap. 
21, and that of the 25 Henry VIII. cap. 19. The former 



60 INTRODUCTION. 

plainly refers to the canons and laws prescribed by a foreign 
power, mainly the Pope ; and these it expressly declares, rest 
not for any obligation they possess upon the power of a foreign 
prince cr prelate, but because the people had taken them to 
be used among them, with the sufferance of the king, and 
established as laws by such sufferance, consent, and custom. 
But the other statute declares, " that the canons, constitutions 
and ordinances, synodal or provincial already made, not re- 
pugnant to the laws and customs of the realm, &c, shall 
still be used and executed as they were afore the making of 
the act ; " manifestly referring and chiefly referring to that 
great body of English constitutions, &c, which had formed 
the law, and was to remain in force until the body of law to 
be framed by the thirty-two commissioners was adopted. 

Fourth. The last period of the English canon law, was 
that from the date of the Reformation to the present time. 
But for the purpose of this work, it is necessary, and only 
necessary, to ascertain the state of the law at the period of 
the settlement of the Church in the colonies. It is of course 
not possible to mark that period with precision ; but no 
greater difficulty attends the subject than in relation to Eng- 
lish civil laws. In a late case in Georgia, (Beal vs. Fox, Ex. 
4 Georgia, Rep. 404,) there is an admirable and full discussion 
of the point. The question was in relation to the prevalence 
of the statute 13 Elizabeth, Of Charitable Uses. It was held 
that the period of colonization was the proper period, and at 
that time the statute was of course in operation. The sera of 
colonization, it was urged by counsel, was properly when 
Georgia became a royal government." 1 

We cannot practically err if we place this period at the 
date of the royal charters to the colonies respectively, if fol- 

1 See also 2 Mass. Rep., 189 N.; De Ruyter and St. Peter's Church, 
3 Barbour's Ch. Rep. New-York. 



INTRODUCTION. 61 

lowed by a settlement, or the period of the first erection of a 
Church and public worship in a Colony.*, 

We have then all the noble statutes of Henry, Edward, 
and Elizabeth, the injunctions of the two latter in 1547 and 
1559, — the Synod of Archbishop Parker, 1571, the Articuli 
pro Cleri of 1584 — the Capitula of London 1597, and the canons 
of 1603, to make up, together with all previous institutions 
not superseded, the English canonical law as it then existed. 
(See Dawson, Book 6. chap. 8, page 157.) 

But this body of the law, or a large part of it, became sub- 
ject in England to important modifications, and to others 
in our own country. Thus the canons of 1603 in a great 
measure superseded the injunctions and institutions above 
mentioned ; and as to those canons themselves, there are 
several considerations of moment. In consequence of the act 
of submission, convocations have been rarely called, and when 
called, have merely passed upon some formal matter. From 
this it has arisen that the canons have not been adapted to the 
numerous changes in the situation of the Church in many 
points affected by them. Some have grown obsolete — some 
incapable of being enforced — others superseded by statute 
law. Thus in the preface to Cardwell's Synodalia, (p. 24.) 
it is remarked " that these canons were passed at a period 
when the state of society was different from its present condi- 
tion, and legislation was carried into matters of extreme 
detail. That there were some it would now be unwise to 
observe, and impossible to enforce. If we inquire how they 
are to be regarded, we answer, 1st. that owing to acts of 
the supreme legislature, the cases of real difficulty, such for 

1 On the 19th of December. 1606, the first ordained Minister of the 
Church of England, embarked as a missionary for the shores of Amer- 
ica. In the Spring of the year 1607, the Services of that Church were 
first administered on this continent. An humble building was reared on 
the bank of James River, in Virginia. What a diffused and holy light 
has sprung from that lowly altar ! 
5 



62 IHTRODUCTIOH". 

instance as relate to the treatment of Dissenters, are actually 
removed, and the few cases that remain may be met by other 
considerations ; and 2d. that the enacting power having either 
abdicated or been dismissed from its office, it would seem ir- 
rational to wait for the same power to remodel its former 
measures, rather than to resort to the authority next in order, 
and to act according to its judgment or counsel." He enume- 
rates a number of the canons actually or virtually superseded ; 
and observes that " the authority from which they proceeded is 
virtually extinct, and that the high spiritual persons whose 
jurisdiction is next in order to that of a synod, though they 
are not competent to annul a canon formally, are competent 
to instruct and direct the conscience as to the continued ob- 
servance of it,' ? 

So Bishop Stillingfleet (Rights and Duties, &c, 261, 267,) 
enters into a long discussion as to the force of custom and 
disuse to vary and extinguish the obligation of canons. This 
work was published in 1698. 1 

Next. The canons are subject to further numerous excep- 
tions and modifications in our own country. 

In examining the canons of 1603 we shall find that the 
great bulk of them are not binding in our Church for various 
reasons. Thus, in consequence of the revolution, and the in- 
dependence of our Church, numbers of these canons were su- 
perseded. Not that the principles of some of them did not 
remain, but not in the form therein declared. The first 
twelve are of this description. The 13th to the 76th 
inclusive are either inapplicable, (such as those relating" 
to colleges,) or the subjects are provided for and regulated by 
canons of our own. There are a few exceptions which will 
be afterwards noticed. The 77th, 78th and 79th, are wholly 
inapplicable. The 127th to the 141st are loeal in their na- 
ture, and have no bearing here. 

1 See also Archbishop Sharp on the Rubrics and Canons t Dis- 
course 5. 



INTRODUCTION. 63 

The result of the preceding investigations, it is submitted, 
is this : 

First. That the body of the foreign canon law is presump- 
tively without force or authority in England ; and that in 
every particular case where it is sought to render one of its 
regulations available, the burthen of proving that such regu- 
lation had been adopted in England, rests affirmatively upon 
the party adducing it. 

That the legatine constitutions of Otho and Othobon stand 
upon the same footing. 

^Second. That the provincial constitutions have the pre- 
sumption of legality and obligation attending them ; and 
whenever applicable to a given case, impose the task upon 
the adverse party of showing why they should not prevail. 

Third, That in addition to these elements of law, the 
statutes of the realm, the decisions of the civil tribunals, the 
cases and precedents in the spiritual courts, made up the body 
of that system of regulations known as the Ecclesiastical Law 
of England. 

The comments and writings of eminent men were also 
sources of information ; and all these, except the statutes, 
formed the testimonials and witnesses of the common law of 
the Church, in the same manner as similar records and reports 
are the evidences of the common law of the realm. 

Fourth. That the canons of 1603, as well as the acts after 
the Reformation, also constituted a portion of that law bind- 
ing upon the clergy, but only binding upon the laity where 
admitted by long custom, or express recognition of the civil 
tribunals. 

This, then, formed the great body of the English ecclesi- 
astical law, when the Church was planted in this country ; 
and this constituted the body of the law of the Church in the 
colonies. Many modifications arose from specific provisions 
of charters, or particular laws of the colonial assemblies, as 



64 INTRODUCTION. 

well as from those changes in the situation of the people and 
usages of the community, which rendered some provisions 
incompatible or inapplicable. Then came the Revolution. It 
brought with it many necessary alterations in the law and 
discipline, as it did in the liturgy of the Church. These have 
become sufficiently defined in our system. And then the 
constitution of the Church at large, and the organization of 
the several dioceses, have led to a body of regulations partly 
original, partly adapted ; and these, with statutes of the civil 
authority, cover a very extended field of law. 

But there will yet remain many cases not provided for. 
In these, I submit, we are to ascertain what was the law of 
the English Church. By that, such cases are presumptively 
to be decided ; leaving it to be shown that such law is repug- 
nant to some principle, settled custom, or institution of our 
own, secular or ecclesiastical. 

Again, — another proposition results from these views, which 
it is supposed will meet with little objection : that upon every 
question of construction of a phrase or precept, its admitted 
acceptation in the English law is to prevail, until otherwise 
expressly interpreted. 

I may state the result in these propositions: 

1. The English canon law governs, unless it is inconsis- 
tent with, or superseded by a positive institution of our own. 

2. Unless it is at variance with any civil law or doctrine 
of the State, either recognized by the Church, or not opposed 
to her principles. 

3. Unless it is inconsistent with, or inapplicable to that 
position in which the Church in these States is placed. 

And let it not be thought, that in this loyalty to the 
English law, we abjure the liberty of a National Church, or 
admit a subserviency to a foreign authority. We do not 
break in upon the principle embodied in the statute 25 Henry 



INTRODUCTION. 65 

YIII., 1 and asserted in the noble language of the declaration 
of liberties of the Church in Maryland. 2 

In submitting to the guidance of English authority, we ren- 
der no other allegiance than every honest judge in the land 
renders to the decisions of Westminster Hall in civil matters. 
These decisions are the witnesses and testimonials of the 
law, liable to be discredited, open to controversy; but stand- 
ing, until this is done, sure and faithful witnesses. So the 
cases in the ecclesiastical courts are the credible expositors of 
English canon law ; and it is that law to which we are to re- 
sort for guidance in all unsettled points. We shall find this 
submission more useful and more noble than the license and 
the anarchy of an unrestricted, undirected, and unenlight- 
ened judgment. 

Yet it is not that the foreign canon law is to be disre- 
garded. That of which Lord Stowell declares, that " what- 
ever may be thought of its pretensions to a divine origin, it is 
deeply enough founded in human wisdom : " — -that which 
continues to influence even the stern features of the Scottish 

1 "The realm of England hath been and is free from subjection to 
any man's laws, but only such as have been devised, made and ob- 
tained within this realm for the wealth of the same, or to such other 
as, by sufferance of the king, the people of this realm have taken by 
their own consent to be used among them, and have bound themselves 
by long use and custom to the observance of the same, not as to the 
observance of any foreign prince, potentate or prelate, but as to the 
accustomed and ancient laws of this realm, originally established as 
laws of the same by the said sufferance, consent and custom, and none 
otherwise." (25 Henry VIII. c. 21.) 

* 2 u We consider it as the undoubted right of the Protestant Episcopal 
Church, in common with other Christian churches, under the American 
Revolution, to complete and preserve herself as an entire Church, 
agreeable to her ancient usages and professions, and to have the full 
enjoyment and free exercise of those purely spiritual powers which are 
essential to the being of every church or congregation, and which, 
being derived only from Christ and his Apostles, are to be maintained 
independent of every foreign or other jurisdiction, so far as may be 
consistent with the civil rights of society." 



66 INTRODUCTION* 

Reformation, may not be contemned. 1 But let it be resorted 
to with caution, and watched with the jealousy of the great 
doctors of the English Church. "It sprang from the ruins of 
the Roman empire, and the power of the Roman pontiffs," 
and partakes largely of the spirit of absolutism which might 
be expected from its origin. 

The application of these principles to particular cases will 
frequently appear in the following treatise. It will be useful, 
however, to point out some of an important character. 

For example. "What is the law of the Church as to the 
performance of the Burial Office ? Is it obligatory upon a 
minister of a parish to read that service over a parishioner, a 
right to burial within the precinct, and a proper notice being 
presupposed? 

We have no special regulation upon the subject. All I 
believe that is to be found is the rubric in the Burial Office, 
providing that it is not to be used for any unbaptized adults, 
any who die excommunicated, or who have laid violent hands 
upon themselves. This corresponds with the rubric in the 
English Prayer Book, except that in our own, the prohibition 
relates to adults only ; in that it extends to infants. 

Although the English rubric was not drawn up until 1661, 
yet it must not be considered as a new law, but merely ex- 
planatory of the ancient canon law, and of the previous usage 
in England. 2 

It can scarcely be argued that any inference from the 
rubric by itself is equivalent to a positive law of the Church 
on the subject. Certainly it allows, but it does not com- 
mand the service. What then was the English law ? 

Lord Stowell uses this language : " About the year 750, 
spaces of ground adjoining the churches were carefully en- 
closed, and solemnly consecrated, and appropriated to the 

1 See Ferguson^ Consistorial Law of Scotland. Introduction. 

2 Shephard, cited by Bishop Brownell. Fara. Pr.Book, p. 394. 



INTRODUCTION. 67 

burial of those who had been entitled to attend divine services 
in the churches, and who now became entitled to render back 
into those places their remains to the earth, the common 
mother of mankind, without payment for the ground which 
they were to occupy, or for the pious offices which solemnized 
the act of interment." l 

This general law to a right of burial and the Church ser- 
vices was recognized in Exparte Blackmore, though a man- 
damus to compel burial in a particular spot was refused, 2 and 
in the King vs. Taylor, cited by Dr. Phillimore, from Sergeant 
Hill's MSS. it was held " that an information was grantable 
against a parson for opposing the burial of a parishioner in a 
Church-yard, but as to the refusing to read the Service over 
the deceased because he was never baptised 5 the King's Bench 
would not interpose, that being matter of Ecclesiastical 
Cognizance." 3 

This law was embodied in the 68th canon of 1603, pro- 
viding " that any minister refusing to bury a body in such 
manner and form as is prescribed in the Book of Common 
Prayer, brought to the Church-yard after a convenient warn- 
ing, shall be suspended for the space of three months." There 
are certain excepted eases. 4 

"When, then, we find that at the adoption of the English 
rubric, such was the law of the Church, we have an interpre- 
tation of it making it obligatory to perform the Service over all 
except those enumerated ; and our rubric must receive the 
same construction, and thus the refusal would be a violation 
of a rubric. 

And this lead's to another question connected with this 

1 3 Phill. Rep. 349. 

2 Barn. & Ald. 122. 

3 Bums by Phillimore, vol. i. title, Burial. 

4 "Our Church knows no such indecency as putting the body into 
the consecrated ground without the Service being at the same trme 
performed." Sir John Nicoll, 3 Phill. 295. 



68 INTRODUCTION. 

subject, directly growing out of the rubric, and in which the 
principle I am defending is of more pointed application. 

The rubric directs that the Burial Office shall not be read 
over unbaptized adults. "Who are such ? The minister would 
be justified in refusing the Service over one unbaptized in the 
sense of the Church. 

Here again, I am not aware of any exposition of the 
phrase in any decision of the Church Diocesan or General in 
our country. But the subject of Lay-baptism was discussed 
in the General Convention of 1811. Bishop White states, 1 that 
it was the object of two gentlemen to obtain a declaration of 
the invalidity of Lay-baptism, including of course a baptism 
by any of the Congregational ministers. He says also that 
there was an increasing tendency in some of the Clergy to ad- 
minster Episcopal Baptism to such as desire it, on the alleged 
grounds of the invalidity of a former Baptism. 

He adds that a distinguished member of the Convention^ 
the Honorable Rufus King, had brought with him a pamphlet 
lately sent from England, containing a judgment in an Eccle- 
siastical Court of that country, in a case precisely in point. 
It was occasioned by a suit brought by a Dissenter against a 
parish clergyman for refusing to bury a child, who had been 
baptized by a Dissenting minister. It was decided by the 
Judge against the clergyman. The Bishop proceeds, " His 
reasons, grounded altogether on the rubrics, must carry con- 
viction to every mind so far as concerns the question of the 
sense of the Church of England. It is true that this does not 
settle the question of the sense of Scripture. On the most 
serious consideration of the subject many years ago, conviction 
is entertained, that the Holy Scriptures and the Church are 
not at variance on this matter." 

The case referred to was no doubt that of Kemp. v. Wicks, 
(3 Phill. Rep. 264,) decided in 1808. 

\J Memoirs of the Churchy page 280. 



INTRODUCTION. 69 

In 1841, the question was again brought before the tribu- 
nals of England. The case of Mastick v. Estcott was insti- 
tuted to obtain the decision of the highest tribunal, and ac- 
cordingly was appealed to the Privy Council, after passing 
through the Arches. (2 Curteis' Rep. 692 ; 4 Moor's Privy 
Council Rep. 104.) 

The rite had been administered in the outward form used 
in the Church, viz : by sprinkling the child with water in the 
name * of the Father, the Son, and Holy G-host. It had been 
done by a dissenting minister. 

An abstract of the opinion in this case may be of interest. 

First, it was declared to be admitted by all, that the above 
form of administering the rite was essential. It had been 
prescribed at the institution of the sacrament. 

Next, that in very early, if not the earliest ages of the 
Church, baptism by lay hands was practised, was allowed to 
be valid, and not to be repeated. That after the time of St. 
Austin, the ancient canons bear ample testimony to its uni- 
versal adoption or recognition ; and that this doctrine of the 
ancient Church was sanctioned in England to its fullest 
extent. The provincial constitutions, from the time of Lang- 
ton, in the reign of Henry III., to that of Chichely, in that of 
Henry V., are referred to, with copious citations from Lyn- 
wood ; and the conclusion is reached that this was the un- 
doubted law of the English Church up to the time of the 
Reformation. 

The learned Judge then proceeds to examine the liturgy 
of Edward the Sixth, and the Rubric, the Prayer Book of 
Queen Elizabeth, and shows that the previous rule was un- 
changed. He then notices the canons of the convocation of 
1575, and particularly that one which expressly prohibited 
lay baptism ; and he quotes Bishop Gibson to the effect that 
this canon was not inserted in the printed copy, and that he 
could not tell the reason of the omission ; and after a full 



70 INTRODUCTION. 

examination as to the authority of the canon, the judge con- 
cludes that it never possessed effect or operation. 

Then follows a minute statement of what was done at the 
Hampton Court Conference in 1603, and the result is stated 
to be, that although the persons engaged therein did all they 
could to discourage lay baptism, yet they could not prevail 
upon themselves absolutely to prohibit it, still less to declare 
it null and void. The judge cites Bishop Fleetwood's work 
upon the subject with much commendation, as showing the 
judgment of the Church of England in the matter. 

It is true that the doctrine as stated in Mastick v. Estcott, 
met with much disapprobation. The general question is 
largely entered into by iVrchdeacon Manning, with a strong 
bias of opinion against the existence of the law as so declared. 1 
A distinguished divine of our own branch of the Church, has 
also discussed the subject, and controverted the validity of lay 
baptism at large. 3 On the other side, the Rev. Mr. Maskell, 
in a late work, has entered upon the topic elaborately, and 
with great clearness supports the proposition, that the validity 
of lay baptism, administered as before stated, was and is the 
undoubted law of the English Church. 3 

Now, I do not presume to enter upon the question on 
scriptural, or even historical and expository grounds ; but 



1 The Unity of the Church, pp, 271—278. 

2 Ogilby on Lay Baptism. 

3 Holy Baptism, a Dissertation, by the R,ev. William Maskell, chap- 
lain to the Bishop of Exeter. Chapter IX. is devoted to this question 
of lay baptism. It occupies 47 pages. He concludes thus: — "With 
respect to the judgment of the Church of England at present regarding 
lay administration, I trust that it has been sufficiently shown, that now, 
as of old, she recognizes and admits all baptisms to be valid, by whom- 
soever conferred, if done with the proper matter, and in the proper 
form : also, that there is no evidence by which we may justly suppose 
that tie ancient permission which the Church gave to lay persons to 
bapize, in cases of necessity, has during the last 200 years been with- 
drawn.". 



INTRODUCTION. 71 

these decisions appear to me to settle the law of our Church, 
and for these reasons. 

They settle that the validity of Lay-baptism was the un- 
doubted law of the English Church when the rubric in ques- 
tion was introduced into the English Prayer Book, and that 
the phrase " unbaptized " must receive a corresponding con- 
struction. 

They decide that this was the law of the English Church 
at the period of its being established here, whatever time is 
assigned for that event. They therefore establish that such 
was the construction of the rubric in the Colonial Church. 

Our Church continued the English rubric with the change 
before noticed as to infants. By doing so, it adopted the 
English rule of its construction, that is, the English law on 
the point discussed. It did this upon the same ground as the 
courts of justice proceed upon, where a statute of England 
has been in force in a colony, and is re-enacted by the state. 
The decisions, interpreting a phrase in such a statute, are 
received as law. If these decisions were made before our re- 
volution, they are treated as authoritative; if subsequently, 
as evidence of the meaning. " 

But as the cases in question were determined since the 
revolution, they do not (upon the analogy presented) possess 
greater force than as witnesses of the law. But they do pos- 
sess that force, and that must be overcome. It is perfectly 
competent for us, to prove that they are not true exponents 
of what was the law of the English Church, when that 
law came with the Church to this land. But if we fail in 
this, we fail in overthrowing their testimony, and the fact 
that such is the law becomes incontrovertible. 



I proceed to another illustration connected with the law of 
marriage, viz., the prohibition of marriages within the degrees 



72 INTRODUCTION. 

as settled by the English Church. This leads to the vexed 
question of the union of a man with a deceased wife's sister. 
What is the law of our Church upon this subject ? 

I look upon this question as one of the most severe tests 
of the principle I am advocating. If no satisfactory and con- 
sistent explanation can be given respecting it, the truth of that 
principle may be doubted. 

And, first, let us inquire what was the law of the English 
Church prior to the statutes of Henry VIII. 

Bishop Gribson states it to have been that which was de- 
clared by the fourth Council of Lateran, (1215,) prohibiting 
marriages within the fourth degree. 

He considers this to be made out by a recital of the stat- 
ute 32d Henry VIII., cap. 38, (1541,) and the fact that the 
records show frequent dispensations by the Pope for the fourth 
degree, and none beyond. 1 

And it is probably this law which in the Institutions of 
John of Stratford (1342) is referred to as among the canonica 
impedimenta. 

That this, however, was the law imposed upon the Eng- 
glish Church during the usurpation of the Pope upon her 
rights and usages, is indisputable. It is also the opinion of 
very learned authors that the Church followed the computa- 
tion of the civil law for several ages ; and Gilbert denies the 
assertion of Pope Alexander in the Decree of 1065, that the 
canonical method had been the ancient custom of the Church. 3 

1 Codex, vol. i. p. 479. n. d. 

3 Codex, vol. i.p. 494. 

8 The decree of the Council of Lateran was to remedy the gross in- 
conveniences which arose from that of the Council of Rome, (1065,) 
under Pope Alexander, by which the prohibition was extended to the 
seventh degree. (Povnter's Law of Marriage , &c, 101. u.) 

In Butler vs. Gaskell, (Gilbert's Rep. 156,) first cousins, or cousins 
german, are declared to be in the fourth degree, and to be at liberty to 
intermarry, and it is said that this was the ancient sense of the Chris- 
tian Church, and even of the Church of Rome in the time of Pope 



INTRODUCTION. 73 

Without pursuing the inquiry minutely through the action 
of Popes and Councils, it is conceded, I believe, (at least by 
anti-papal writers,) that the Church was first governed by 
the decrees of emperors on this subject, finally establishing 
the civil law computation." 1 

But all former laws and institutions of the Church of 
England were merged in the statutes of Henry YIIL, to which 
attention must next be given. 

The first act of this reign upon the subject, was the 25 
Henry VIII. cap. 22. (1533.) This enumerated the Levitical 
degrees, added to them the marriage with a wife's sister, and 
enacted "that no person should henceforth marry within such 
degrees." 

"Without detailing the minute examination I have gone 
through, of the statutes, it appears to me that the statutory 
law of England rested on the the act 32 Henry VIII. cap. 38. 
That act was repealed in part by the 2 Edward VI. cap. 23 ; was 
repealed wholly in 1 Philip and Mary, and so revived in the 
1st of Elizabeth, as to place it where it stood by the provision 
of Edward. The law therefore as resulting from the statute, 
was as follows: " All such marriages as shall be contracted 

Gregory, for in writing to Austin, Archbishop of Canterbury, he says: 
" In quarta generatione contracta matrimonia minime solverenier/' 

1 The matter is fully discussed in Taylor's Elements of the Civil 
Law, (Tit. 13, § 2.) Dr. Harris, in his Notes on Justinian. (.Lib. 1, 
Tit. 10.) says: *' Some authors supposed that Pope Alexander the 2d, 
perceiving dispensations to be very lucrative to the Church, and at the 
same time conscious that it had universally obtained, that persons 
might marry in the fourth degree, began a new computation, according 
to which the canonists have since reckoned all the degrees." 

The prohibition by the Emperor Theodosius of the marriage of first 
cousins, which appear to have been the first interference with the rule 
of the civil law, appears to recognize that law as then in force. 

Van Espen says: " Admodum autem verisimile est quod veteres 
computaverunt gradus non juxta dictam computationem canonicam, 
sed juxta computationem civilem. Ecclesia enim in similibus solita 
fuit regulas suas legibus Imperii conformare." Juv. Ecc Un., p. 1, 
Tit. 18, cap. 5. 



74 INTRODUCTION. 

between lawful persons (as we declare all persons to be lawful 
that be not prohibited by God's law to marry,) such mar- 
riages being contracted and solemnized in the face of the 
Church, &c, shall be deemed lawful notwithstanding any 
pre-contract. 

" And no reservation or prohibition (God's law except) shall 
trouble or impeach any marriage without the Levitical degrees." 

In the year 1563, a table of the prohibited degrees was 
set forth which will be found in Gibson, page 499 ; and in 
Burns, vol. 2 page 442 ; and by the 99th canon of 1603 it was 
provided that no person should marry within the degrees pro- 
hibited by God's law, and expressed in*a Table set forth by 
authority, in the year of our Lord 1563 ; and all marriages 
so made shall be adjudged incestuous and unlawful. The 
force of this canon is well stated in the case of Butler vs. 
Gaskill, (Gilbert's Rep. 150,) V It is objected that the canons 
bind only ecclesiastical persons, and do not bind the laity, 
because they have not the assent of the Commons and Tem- 
poral Lords ; but to this I answer that such Tables do show 
the sense of the Church of England, and so are a proper expo- 
sition of the law of God, and by consequence ought to have 
great weight with the Judges when they expound the Leviti- 
cal law." * 

Under the statute law of England, interpreted and strength- 
ened by the canons, the following points have been decided. 

That the marriage of a man with the daughter of his wife's 
sister is prohibited. (Man's case, Croke, Elizabeth 228, 4. 
Leonard 16. Wortley vs. Watkinson, 2 Levins 254. Ellerton 
vs. Gastrell, Comyns' Rep. 318.) 

So a marriage with the sister of the mother of the first 
wife, (Butler vs. Gaskill, Gilbert's Rep. 156,) and a mar- 
riage of an uncle with a niece was also virtually prohibited by 
the precept which forbids a nephew to marry his aunt. (Lord 
Raymond 464, 5. Mod. p. 170. Gibson's Codex. 499.) 



INTRODUCTION. 75 

In Hill vs. G-ood, 25. Car. 2 the point of marrying the 
deceased wife's sister came under consideration in the King's 
Bench. (See Vaughan's Rep. 302. 3 Keble 166.) Though 
it was alleged that the precept prima facie seemed to be only 
against having two sisters at the same time, and prohibition 
to the Spiritual Court was granted ; yet in Trinity Term 26 
Car. 2. after hearing civilians, they granted a consultation as 
a matter within the statute 32 Henry VIII. , though the 
former statute 28 Henry VIII. had never been revived after 
the repeal by Queen Mary. This case is cited by Vaughan in 
Harrison vs. Burwell, (Vaughan's Rep. 206,) who adds, that 
the statute was virtually revived, in which position he most 
probably was in an error. 

It will be seen that none of the cases cited above, are 
within the letter of the prohibitions in the 18th chapter of 
Leviticus. They have been held to be within the scope of the 
law, because of being within the same degrees upon the doc- 
trine of parity of reasoning. This principle is admirably ex- 
pressed in the Reformatio Legum. 1 

In the case of Harrison v. Burwell, (Vaughan's Rep. 206. 
2 Ventris 9,) a marriage with the wife of a great uncle was 
held valid, because it was in the fourth degree. 

In this case it was declared by the judges, "that but for 
the provisions of the statute it would be difficult to prove that 
they were civilly bound by the Levitical decrees in respect to 
the lawfulness of marriages, unless the prohibition was also 
clearly dictated by the natural law." 

1 Duas regulas magnopere volumus attendi, quarum una est ut qui 
loci viris attribuuntur easdem sciamus fceminis assignari paribus sem- 
per proporlionum et propinquitatum gradibus. Secunda regula est, ut 
vir et uxor unam et eadem inter se carnem habere existimentur, et ita 
quo quisque gradu consanguinitatis quemque contingit, eodem jus uxo- 
rem contingit affinitatis gradu ; quod etiam in contrariam partem eadem 
ratione valet. (De Gradibus, cap. 4, p. 45. Ed. 1640.) 

Lord Stowell, in Hutchins v. Denzilore, (1 Consis., Rep. 179,) says: 



76 INTRODUCTION. 

Such was the law of England, until the Act 5 and 6 
William IV., cap. 54, called Lord Lyndhurst's act. By that 
statute, all marriages within the prohibited degrees of affinity 
which had taken place before the 31st August, 1835, were to 
be held valid, except a suit for nullity was then pending; and 
all marriages thereafter, within the prohibited degrees whether 
of consanguinity or affinity, were pronounced absolutely null 
and void. 

And since this act, the very late case of Regina v. Chad- 
wick, has been determined. (Queen's Bench, January 1848.) - 

In Ray v. Sherwood, (1 Curties' Ecc.,Rep. 197,) the suit 
was brought by a father, to annul the marriage of a daughter 

<C I shall justify my interpretation by a quotation from the Reformatio 
Legum, a work of great authority in determining the practice of these 
times, whatever may be its correctness in matters of law." 

Bishop Jewell, says: "Albeit I be not forbidden by plain words to 
marry my wife's sister, yet am I forbidden so to do by the words which 
by exposition are plain enough. For when God commands me I shall 
not marry my brother's wife, it follows that he forbids me to marry my 
wife's sister. For between one man and two sisters, and one woman 
and two brothers, is like analogy or proportion." (Apud Gibson's Codex, 
yoI. i. p. 498.) 

1 Queen v. Chadwick, (17 Law Journal, Rep. N. S. p. 33.) The 
points determined were these : — The 5th and 6th William IV., cap. 54, 
renders void all marriages within the prohibited degrees, solemnized 
after its passage, which were before voidable only, by sentence during 
the life of the parties. 

A marriage with a deceased wife's sister, contracted after the act, 
was absolutely void. 

The prohibited degrees of consanguinity and affinity, in 5 and 6 
William IV., cap. 54, refer to the decisions of the ecclesiastical courts 
at that time. 

The degrees prohibited " by God's law," in 32 Henry VIII., cap. 38, 
are those enumerated in 25 Henry VIII., cap. 22, and 28 Henry VIU., 
cap. 7. 

This last position is sustained by the court, by an elaborate course 
of reasoning. In substance it is, that the statute 32 Henry VIII., was 
undeniably in full force before Lord Lyndhurst's act; but that the pre- 
vious statutes were so far operative, as to afford the rule of construc- 
tion for the governing statute. 



INTRODUCTION. 77 

with the husband of her late sister. The court held, that 
while the act saved the marriage (being before the 31st Au- 
gust, 1835,) from being void on account of the offspring, it 
did not prevent the parties from being punished for an inces- 
tuous marriage. 

My view, then, of the law of England, at the date of the 
colonization of this country, may be summed up in the follow- 
ing propositions : 

1. The statutes 25 and 28 Henry VIII. were not strictly 
in force. There was therefore no statutory enumeration of 
forbidden degrees. 

2. The statute 32 Henry VIII. cap, 38, or that part of it 
which bore on this subject, was the parliamentary enact- 
ment then existing. By this, marriages within the Levitical 
degrees were prohibited as contrary to (rod's law — those 
without were allowed. But, 

3. It is to be noted that the distinction was carefully 
made between the Levitical prohibitions and the Levitical 
degrees. Many cases were decided as within the latter, which 
are not expressed in the former. And again it is to be noted 
that the phrase " Grod's Law," as used in the statute, is not 
identical with the Levitical prohibitions. 

4. As the express prohibitions in Leviticus were few, and 
did not in terms embrace numerous cases, plainly as repug- 
nant to even natural law as those enumerated, a rule of con- 
struction necessarily grew up, by which cases within the same 
degrees as those prohibited, were adjudged to be within the 
prohibitions. 

5. Hence as the enumeration in the canon of 1563, has 
been in many instances sanctioned by judicial decisions, and 
as every case in it is within the three first degrees of the Civil 
Law Computation, that canon, adopted by the 99th of 1603, 
may be treated as the then English law, not by its own force 
or effect, but as a recognized exposition of the statute. 

6 



78 INTRODUCTION. 

6. And thus it may in fact be stated that by that law, 
marriages 'within the three first degrees of the civil law com- 
putation were illegal, and beyond the third degree lawful ; and 
that upon the question of affinity, those of the blood of the 
wife are in the same relation to the husband as those of his 
own blood ; and so conversely. Of course in the lineal line 
the prohibition is ad infinitum. 

It may then seem to be the result that this was the law of 
the colonial Church in our land, and continued to be its law 
after the revolution. 

But here an important consideration arises. It can 
scarcely be doubted that the English statute law as to the 
prohibited degrees, was either not considered in the colonies 
as part of the statute law prevalent here, or was superseded 
by express statutes. This may be proven by the fact that 
statutes were passed upon the subject in most of the Colo- 
nies, and from some judicial decisions. 1 The instances of 

1 In Virginia there was a statute of prohibitions at least as early as 
1730. In 1769, the issue of marriages within the prohibited degrees 
were declared illegitimate. In 1788 the degrees were extended, but 
the issue legitimized. And so the law stood in the Revised Code of 
1817, (p. 399.) and I presume is now the law of the State. (See also 
2 Leigh's Rep. 717.) These statutes comprised the Levitical degrees, 
and also the marriage of a man with the sister of a deceased wife. 

In Connecticut by an act of 1715, the Levitical prohibitions were 
adopted, and the marriage with a wife's sister was included. But the 
present law does not include either a brother's wife, or a wife's sister. 

In the Revised Code of Rhode Island, of 1844, (page 262.) in the 
statute of prohibitions, reference is made to an act of 1749, and another 
of 1754, which I have not had an opportunity of examining. The pre- 
sent law is similar to that of Connecticut. 

By a statute of South Carolina, passed in 1706, it was declared that 
all marriages within the table of degrees directed to be set up in every 
Church were unlawful. The statute 32 Henry VIII. cap. 38 was then 
adopted as an express section of the colonial act. There can be little 
doubt that the table referred to was the English table. 

There was an enactment in New Jersey in 1719. (cap. 94, § 7,) by 
which it was provided that " no marriages should be prohibited as 
within any degree of affinity or consanguinity, but such only as by the 



INTRODUCTION, 79 

Virginia, Maryland, South Carolina, and New Jersey, where 
in fact the English law was adopted, are very strong upon 
this point* 

If this is so, then of course it was not the law after the 

laws or statutes now in force or hereafter to be in force in his Majesty's 
kingdom of Great Britain, are, or shall be prohibited/' An act was 
passed in 1795, (1 R. S- 1847, page 376.) which I understand is now in 
force By this, the English table is adopted, except a father's brother's 
wife, mother's brother's wife, wife's father's sister, wife's mother's 
sister, wife's sister, brother's wife, brother's son's wife, sister's son's 
wife, wife's brother's daughter, and wife's sister's daughter. 

In Maryland, a colonial act of 1702 was passed to prevent all 
illegal and unlawful marriages not allowable by the Church of Eng- 
land, but forbidden by the table of marriages,'' and it imposed a fine 
upon any persons marrying within the degrees. 

In 1777, the General Assembly passed an act that if any person 
should marry with another related within the three decrees of lineal 
direct consanguinity, or within the first degrees of collateral consan- 
guinity, each of them should forfeit £500, or be banished from the 
State forever; or should marry within the other degrees set forth in 
the table contained in such act he should forfeit £200. The table com- 
prehended a wife's sister, a nil brother's wife ; indeed was an exact 
transcript of the English table of 1563. But in 1785 the act was 
amended by omitting several of the degrees, viz: a father's brother's 
wife, mother's brother's wife, wife's father's sister, and wife's mother's 
sister, with others, and in 1790 it was again amended by omitting a 
wife's sister, and brother's wife. 

There was no colonial law upon the subject in the province of 
New-York, and it is certainly to be deduced from. the opinion of Chan- 
cellor Kent, in Wightman vs. Wightman, (4 John C. R. 343.) that 
the statute law of England did not prevail. " I incline to the opinion 
that, as we have no statute upon the subject, and no train of common 
law decisions, independent of any statutory authority, the Levitical 
degrees are not binding as a rule of municipal obedience. Marriages 
out of the lineal line, and in the collateral line, beyond the degrees of 
brother and sister, could not well be declared void, as against the first 
principles of society ." 

It is to be remembered that by the then constitution of New-York, 
the common law and such parts of the statute law of England as formed 
the law of the colony on the 17th day of April, 1775. was the law of 
the state. (See Latour vs. Tuesdale, 8 Taunton, 830. 2 Kent's Com. 
page 74, § 5.) 



80 INTRODUCTION 

revolution. Indeed, the latter is clear, even if the former 
were doubtful. 

Again. — It is equally certain, that the English canon, by 
its own unsupported authority, did not bind the laity. The 
case of Middle ton and Crofts is as strictly applicable to this 
question as to that which was determined by it; and it is 
impossible to say that the canon in this instance was but a 
recognition of prior established law. 

Once more. — The legislation of the colonial civil authority 
superseded as a matter of law, and to some extent, all canon- 
ical regulations otherwise binding upon the clergy, as well as 
the statute law of England. 

This proposition requires to be carefully stated and quali- 
fied. 

It is to be remembered that marriage is to a great extent 
a mere civil contract, peculiarly the subject of civil legisla- 
tion. The legitimacy of children, the right of succession, and 
stability of titles are involved in it. 

It was one of the points of papal usurpation, that the law 
of marriage was established as distinct from and opposed to 
the laws of sovereign states. 1 In this aspect of the relation, 
and in modern times, the municipal law is the predominant 
rule of action. What is permitted by it is prima facie law- 
ful — what is forbidden is illegal. Hence, if a new municipal 

1 For example, there were fifty-seven articles submitted to the con- 
sideration of the Bishops of Tuscany, by the Grand Duke Leopold, in 
the progress of his reforms. Among them, as to this law of marriage, 
it is stated: — " The important subject of marriage presented one pe- 
culiar feature, namely, that the opposition party would not agree to 
the nullity, in a civil point of view, of mere promises, whether written 
or verbal, as the Bishops of Pistoria, Colle, Chiuse and Loano would 
have wished them. They agreed, however, with these enlightened 
prelates, in admitting that there was a difference between the contract 
and the sacrament, and even allowed that the sovereign possessed all 
authority in regard to the former." {Memoirs of Scipio de Ricci. vol. i. 
p. 246.) 



INTRODUCTION. 81 

law has superseded an old one, the rule of action for every 
citizen, in every relation of the subject, is primarily, the new 
law. 

To take a plain case for an example : — Numerous institu- 
tions and canons of the Church of England, before the statute 
of George II., called Lord Hardwicke's act, required the so- 
lemnization of marriage in the parish church, the presence of 
a priest, the publication of banns, &c, unless a special license 
dispensed with these formalities. 

And this was the law of the Church of England, as settled 
in Middleton's case ; and let it be assumed that it was part of 
the law of the land, brought into the colonies. But this rule 
was entirely superseded by express legislation, or long esta- 
blished custom. 1 It follows that every canon and rule of the 
Church upon the matter, was necessarily superseded by this 
change in the law of the land. 

In like manner it is conceived that the law of the English 
Church, irrespective of parliamentary enactment, as to the 
degrees, was superseded by the law of the states ; but super- 
seded as matter of legal obligation, and no further. It left 
our Church without a definite rule, except that of the muni- 
cipal law, until sfae enacts a regulation of her own. In the 
mean time, the clergy must be left to the guidance of their own 
judgment and conscience. They who believe, with a host of 
divines, that the prohibitions of Leviticus form part of the 
moral law still binding on Christians, 2 and that the cases 

1 One of the laws of the Duke of York (1684) was as follows: — 
u Whereas, by the law of England no marriage is lawful without a 
minister whose office it is to join the parties in matrimony, after the 
banns thrice published in the Church or a license first obtained, all 
which formalities cannot be duly practised in these parts. 7 ' — The act 
then proceeds to appoint the mode of publication, and the officers to 
perform the ceremony. (Collect. Hist. Soc, vol. i.) 

In Ward v. Day, Prerog. Court, Nov. 1846, it was allowed that mar- 
riage in a colony is governed by the lex loci. 

3 See the 6th Article of the Church. 



82 INTRODUCTION. 

within the same degrees are within the prohibitions as much 
as if so expressed, have a law unto themselves. They who, 
while they do not regard the prohibitions as strictly obligatory, 
yet look upon the rule which they furnish, and the exposition 
of the English Church, as the safest guide for the conscience, 
have a rule of action equally clear, if less stringent. And they 
who discard both principles, will look either to the civil law 
for their direction, or to some other standard of their own 
creation or adoption. 

The action of our Church upon this subject, appears to 
fortify the views above presented. In the year 1808, the Con- 
vention of Maryland adopted the English canon law as to the 
degrees, and instructed their deputies to the Oeneral Conven- 
tion to report their canon, and to endeavor to obtain its adop- 
tion as the general law. This was referred to the House of 
Bishops, who reported that agreeable to the sentiment enter- 
tained by them in relation to the whole ecclesiastical system, 
they consider that table now obligatory on this Church, and 
as what will remain so, unless there should hereafter appear 
cause to alter it, without departing from the word of God, or 
endangering the peace and good order of the Church. They 
are however aware that reasons exist for making an express 
determination as to the light in which this subject should be 
considered. They recommended that the consideration be 
postponed, from the lateness of the session and other reasons. 

In 1817, the subject was again referred to the House of 
Bishops, and that committee afterwards prepared the follow- 
ing declaration,, which, however, was not acted upon : — " By 
the Bishops, the Clergy and the Laity of the Protestant Epis- 
copal Church in the United States of America, in Convention. 
The table of kindred and affinity, wherein whosoever are re- 
lated are forbidden to marry as established in the Church of 
England, is received and established in this Church ; with the 
proviso in reference to the prohibition of a man's marrying his 



INTRODUCTION. 83 

brother's wife, or his wife's sister, and of a woman marrying 
her husband's brother, or her sister's husband : that although 
the Church disapproves of such marriages because of tempta- 
tion to sin in the allowance of them, yet in the event of such 
marriage, it shall not be a cause of repelling from the holy 
communion. But it shall not be lawful for any clergyman 
of this Church to celebrate such a marriage." (Wilson's Me- 
moirs of Bishop White, p. 346.) 

In the report which was to have accompanied this decla- 
ration, the committee said : " It must be held desirable, that 
the laws of the land should prohibit the marriages now treated 
of. But if this has not been done, it would seem that a 
Church in such a land, however it may see cause to entertain 
and to express disapprobation of them, should hesitate to re- 
ject from the communion on their account, unless there can 
be alleged some divine law requiring such an act ; for then 
the sanction of the State ought not to extort the sanction of 
the Church." (Ibid. 344.) 

The report proceeds : " The running of the line between 
the safe and the hurtful, is left to the determination of the 
State and the Church, in their respective spheres. The Church 
ought to accommodate her provisions to those of the State, so 
far as it can be done without injury or damage to the morals 
of her members. If the State should sanction what the 
Church considers as not essentially sinful, but as affording 
temptations to sin, she ought to discountenance it in such a 
degree as Christian prudence shall dictate." (Ibid.) 

In the year 1838 the subject was resumed, and a com- 
mittee was appointed by the House of Bishops, consisting of 
Bishops Grriswold, Brownell, and Henry U. Onderdonk. In 
1841, the two former reported that in their opinion it was 
inexpedient at the present time to make any decision on the 
subject. A minority report was presented by Bishop Onder- 
donk, in which he laid down that it was the duty of the 



84 INTRODUCTION. 

General Convention to legislate on the subject — that the evil 
of prohibited marriages has greatly increased since the English 
table ceased to be obligatory in our Church. 

" He respectfully proposes that the entire English table 
of prohibitions be enacted by the General Convention, that 
table being in exact conformity with the law of God. 

" He refrained from proposing any penalty on the parties 
intermarrying ; but as to the clergy, he suggested that any 
one officiating should be suspended for a period not less than 
two, nor more than seven years; and that a minister con- 
tracting such a marriage should be displaced." 

No action took place in the Convention, and the subject 
has not been resumed. 

The considerations now submitted, appear to justify the 
conclusion, that the English canon law upon the subject of 
the prohibition of marriages does not prevail in our church, 
and that this may be explained consistently with the general 
principle as to the force of that law, contended for in this* 
w r ork. 



[ The positions which in this Introduction, I have endeavored 
to sustain are not urged, merely in the hope that they may aid 
in the interpretation and application of the laws of the Church. 
The attempt is allied to higher motives and deeper interests. A 
Churchman by inheritance, long and earnest examination has 
rooted the belief in my mind, that in the Protestant Episcopal 
Church, we have the nearest approach that the world can pre- 
sent, to the Church which the Saviour authorized his Apostles 
to establish. As I believe that all hope of the preservation of 
our unrivalled civil institutions rests upon the prevalence of 
Christianity, so do I believe that the more the people are 
anchored in the doctrines and principles of the Episcopal 
Church, the more surely will those institutions abide every 
assault they must encounter. The exposition of her laws 



INTRODUCTION. 85 

may assist in the promotion of that respect and love which 
her tenets command, just in proportion as they are studied. 
Her cautious spirit — her firm yet well-tempered discipline — her 
strong foundations in the Holy Scriptures — her stately columns, 
strengthened by all historic evidence and primitive action — 
the beautiful chastity of her garments of worship as she ap- 
proaches the Father of Spirits — and that most exquisite union 
of Gospel truth and devotional fervor, the Book of Common 
Prayer, — all combine to supply every thing that a pure ima- 
gination, an earnest piety, or an enlightened intellect, can crave 
or deserve. Let but the spirit of forbearance and toleration 
move among ourselves — let us but uphold her doctrines with 
firmness and charity — let her holiness be exemplified in our 
lives, — and the mind of the country will give way to her claims, 
will imbibe her truth, and will spread her influence from the 
vale to the hill-top, until the whole land rejoices in her presence. 
" Yes," in the language of one of the most magnificent of Eng- 
land's orators, — " Yes, I would have her great, and powerful. 
I wish to see her foundations laid low and deep, that she may 
crush the giant powers of rebellious darkness. I would have 
her head raised up to that Heaven to which she would con- 
duct us. I would have her open wide her hospitable gates, 
by a noble and liberal comprehension ; but I would have no 
breaches in her walls. I would have her cherish all those 
who are within, and pity all those who are without. I would 
have her a common blessing to the world ; an example, if 
she is not permitted to be an instructor, to all who have not 
the happiness to belong to her. I would have her give a les- 
son of peace to mankind, that a vexed and wandering gene- 
ration may be taught to seek for repose in the maternal bosom 
of her Christian charity, and not in the harlot lap of indif- 
ference or infidelity." ! 

1 Edmund Burke. 



CHAPTER I. 

THE CONSTITUTION OF THE CHURCH AND THE 
GENERAL CONVENTION. 



Concilium sacrum venerandi culmina juris 
Condidit, et nobis congrua fraeoa dedit. 

{Carmen dechasticum Conilii Nicceni) 



TITLE I. 

THE CONSTITUTION ITS HISTORY AND CONSTRUCTION. 

' When the peace of 1783 completed the severance of the 
colonies from the sovereignty of Great Britain, the separation 
of the Episcopal Church from the guardianship and nurture 
of that of England necessarily followed. It is true that the 
connection, and to some degree an admitted dependence, did 
not cease, until, by the consecration of three bishops, there 
was within our own limits the power of continuing the suc- 
cession- — an indispensable element of a perfect national 
Church. For all purposes of government and discipline, how- 
ever, the separation was absolute. Linked together before by 
the profession of the same doctrines, the use of the same lit- 
urgy and rites, subscription by its clergy to the same articles, 
the prevalence of the same code of canon law, and subjection 
to one bishop, the Church of the colonies was in theory a 
compact and united body. Inadequate and inefficient as the 
superintendence of the Diocesan of London w T as, yet the 
great principle was recognized of the necessity of a bishop 
for a perfect Church, and exertions were constantly made to 
obtain the full benefits of the Episcopate for America. 



88 CONSTITUTION OF THE CHURCH 

But the all-engrossing and fierce struggles of the revolu- 
tion, unfavorable to the growth of religion, or the spread of 
any body of Christians, were peculiarly fatal to a Church 
founded upon the principles of that of England. Accordingly, 
when peace arrived, it found the Episcopal Church prostrated 
and overwhelmed — the object of political jealousy and hatred 
— the object of bitter invective and persecution of sects, profit- 
ing by her downfall and exulting in her ruin. It found her 
drooping in sorrow and in fear amid the broken pillars of her 
temples, and the disjointed stones of her altars. 

But the cause was not hopeless. Independent of the as- 
surance of the perpetual presence of her founder, there was 
within these states a class of clergymen whose doctrines had 
been imbibed at the purest fountains of the English Reforma- 
tion, whose faith had been strengthened, their intellects in- 
vigorated, and their prudence matured, by the scenes of diffi- 
culty and tribulation through which they had passed. They 
brought to the great work of the re-establishment of the 
Church a zeal, energy, and judgment worthy of the object, 
and adequate to the task. 

The primary matters for their consideration and efforts 
were two. First, to procure the consecration of such a number 
of bishops as to secure within the United States the perpetual 
succession of the Episcopacy ; and next, to establish a system 
of general union, and to constitute a body to secure and ex- 
pand it. 

The events and acts connected with the first subject do 
not fall within the scope of this work. That recital full of 
deep interest, belongs to the distinguished historian of the 
Church, whose useful labors have been (unavoidably, no 
doubt) too long intermitted. 

The first influential step which was taken for the union 
of the Churches of the states of which we have any record, 
was at the meeting of various members of the churches of 



AND THE GENERAL CONVENTION. 89 

Philadelphia, held in May, 1784. They adopted the follow- 
ing as fundamental principles for the Church at large. 

1st. That the Episcopal Church in these states is, and 
ought to be, independent of all foreign authority, ecclesiastical 
or civil. 

2d. That it ought to have, in common with all other re- 
ligious societies, full and exclusive power to regulate the con- 
cerns of its own communion. 

3d. That the doctrines of the Gospel be maintained as 
now professed by the Church of England ; and uniformity of 
worship continued, as near as may be, to the Liturgy of the 
said Church. 

4th. That the succession of the ministry be agreeable to 
the usage which requires the three orders of bishops, priests 
and deacons ; that the rights and powers of the same respect- 
ively, be ascertained ; and that they be exercised according to 
reasonable laws to be duly made. 

5th. That to make canons or laws there be no other au- 
thority than that of a representative body of the clergy and 
laity conjointly. 

6th. That no powers be delegated to a general ecclesi- 
astical government, except such as cannot conveniently be 
exercised by the clergy and laity in their respective congre- 
gations. (Bishop White's Memoirs, p. 72.) 

In the same month of May, 1784, at a meeting of several 
clergymen, held in New Brunswick for another purpose, the 
subject of a general union was entered upon, and the result 
was an invitation for a more general meeting to be held in 
the city of New- York. Some discussion took place upon the 
principles of ecclesiastical union. In consequence of the 
pending application of Dr. Seabury, for consecration in Eng- 
land, further proceedings were postponed. Bishop White 
remarks that the more northern clergymen were under appre- 
hensions of there being a disposition on the part of the 



90 CONSTITUTION OP THE CHURCH 

southern members to make material deviations from the 
ecclesiastical system of England, in the article of Church 
government. (Memoirs of the Church, p. 65.) 

In September, 1784, a body of the clergy of Massachusetts 
and Rhode Island, held a meeting at Boston, and adopted a 
series of resolutions, most of them identically the same as 
those declared in Philadelphia. To the first, was added a 
clause that it should not exclude the churches, separately or 
collectively, from applying to some regular Episcopal foreign 
power for an American Episcopate; and to the fifth, it was 
added, that in the representative body, the laity ought not to 
exceed, or their votes be more than those of the clergy. 1 

1 On the 8th of September, 1784, there was a Convention of the 
Clergy of Connecticut, at New Haven, and it was resolved, that Mr. 
Marshall shouhl attend the Convention to be held at New- York on the 
first Tuesday after the Feast of St. Michael in October next, to repre- 
sent this Convention on that occasion, and that a letter be written to 
that body to acquaint them with the reasons why the Clergy of Con- 
necticut cannot enter into any discussion of measures relative to the 
settlement of the Church in the United States, previous to the com- 
pletion of the Church in this State, by having a Bishop among us. 

On the very same day, (8th September, 1784,) the Convention of 
the Clergy of Massachusetts and Rhode Island, before mentioned, was 
held at Boston, and a letter addressed to the Clergy of Connecticut, of 
which the following is an extract. After adverting to the minutes of 
the proceedings at Philadelphia in May 1784, it proceeds: — "It is our 
unanimous opinion that it is beginning at the wrong end to attempt 
to organize our Church before we have obtained a head. We cannot 
conceive it probable or ereu possible to carry the plan they have 
pointed out into execution, before an Episcopate is obtained to direct 
our motions, and by a delegated authority to claim our assent. It. is 
needless to represent to you the absolute necessity of adopting and 
uniting in some speedy measures to procure a person who is regularly 
invested with the powers of ordination, without which scarce the 
shadow of an Episcopal Church will remain in these States. In case a 
meeting of a representative body shall be agreed upon, we have dele- 
gated a power to one of our number to represent us anil our churches 
in such a meeting. We are extremely desirous for the preservation of 
our Communion, and the continuance of uniformity of doctrine and 
worship, but we see not how this can be maintained without a common 



AND THE GENERAL CONVENTION. 91 

In October of the same year, (1784,) a number of clergy- 
men appeared in New- York, from the states of Massachusetts, 
New Jersey, Connecticut, Pennsylvania, Delaware, Maryland, 
Virginia and New-York ; but as the greater part of the depu- 
ties were not invested with powers to bind their constituents, 
all that was done was to recommend a series of resolutions to 
the churches in the several states, which should be considered 
as fundamental articles of union. They were as follows : 

1st. That there shall be a General Convention of the 
Episcopal Church in the United States of America. 

2nd. That the Episcopal Church, in each state, send 
deputies to the Convention, consisting of clergy and laity. 

3rd. That associated congregations, in two or more states, 
send deputies jointly. 

4th. That the said Church shall maintain the doctrines of 
the gospel as now held by the Church of England, and shall 
adhere to the liturgy of the said Church, as far as shall be 
consistent with the American Revolution and the Constitu- 
tion of the respective states. 

5th. That in every state, when there shall be a bishop 
duly consecrated and settled, he shall be considered a member 
of the convention, ex officio. 

6th. That the clergy and laity, assembled in convention, 
shall deliberate in one body, but shall vote separately ; and 
the concurrence of both shall be necessary to give validity to 
every measure. 

The seventh article recommended the time and place of 
the meeting, (Philadelphia, September, 1785,) with an earnest 
request that clerical and lay deputies might be sent by the 
churches of the states. 

Accordingly, in September, 1785, delegates assembled in 

head, anil are therefore desirous of uniting with you in such measures 
as shall be found expedient and proper for the common good. Signed 
S. Graves — MSS. Rev. Dr. Jarvis. 



92 CONSTITUTION OF THE CHURCH 

Philadelphia, from the States of New- York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia and South Car- 
olina. 

It may be useful to defer the consideration of the acts of 
this first convention in order to glance at the situation and 
action of the different churches in the states, prior to that im- 
portant period. 

A convention was held in Maryland as early as August, 
1783. There was then made a declaration of the fundamental 
rights and liberties of the Protestant Episcopal Church of 
Maryland. The independence of that Church of any foreign 
or other jurisdiction, was declared, with its entire authority to 
establish its own internal government. In June, 1784, the 
laity were introduced into the convention, and they ratified 
the previous acts. Certain principles were declared funda- 
mental, and conventions were to be held in every year. 

In South Carolina, there was a meeting of vestries on the 
8th of February, 1785, when the resolutions adopted at New- 
York were read. A convention was held in July, 1785 ; depu- 
ties were appointed, and it was resolved that they should be 
left to act according to their judgment. (Dalcho, 466.) 

In New-York, a convention of clergy and laity was held in 
June, 1785. Three clerical, and three lay deputies were ap- 
pointed to attend the General Convention, and they were 
authorized to proceed upon the points of business proposed for 
deliberation, so far as they should conform to the general 
principles established to regulate their conduct. At this 
meeting a body of rules and regulations were adopted for the 
government of the Church. 

A convention was held in Virginia, in May, 1785. Depu- 
ties were appointed, and were furnished with such instruc- 
tions as to leave the convention of that state at liberty to 
approve or disapprove of the proceedings of the General Con- 
vention, (Hawks' Contributions , &c, Journals, Vol. I. p. 



AND THE GENERAL CONVENTION. 93 

185.) The 1st, 2J, 3d, and 5th of the fundamental articles, 
were approved. As to the 4th, the convention declined com- 
mitting itself upon the subject, until it should have been 
revised in the approaching General Convention, and reported 
to the Virginia Convention. As to the sixth article, it was 
rejected, except that the mode was agreed to be used in the 
proposed convention then to take place. 

At the same convention the standing committee was di- 
rected to consider the proper steps to be taken to obtain the 
consecration of a bishop, and a code of regulations was passed 
for the order of the Church. Districts were made, and a 
visitor appointed for each. (Hawks' Contributions, &c, vol. 
i. p. 180, 181.) 

A convention met in New Jersey, in the summer of 1785 
Delegates were appointed with power to accede to the funda- 
mental principles published by the convention of the Church 
held in New-York, in October, 1784, and to adopt such mea- 
sures as the said General Convention may deem necessary for 
the benefit of the Church, not repugnant to the aforesaid fun- 
damental principles. (Journals, 1785.) 



It was before stated that in Sept., 1785, the delegates 
from the seven states met at Philadelphia. On the 1st of 
Oct., 1785, the draft of an Ecclesiastical Constitution was 
submitted to the convention by the Rev. Dr. Smith, of Mary- 
land, the chairman of a committee before appointed. It was 
read by paragraphs and ordered to be transcribed. Nothing 
further was done in that convention. 

The second General Convention met on the 20th of June, 
1786. The constitution was taken up and debated. Several 
alterations were made, and on the 23d of June, it was unani- 
mously adopted. The title and preamble are as follows : 

"A General Constitution of the Protestant Episcopal 
Church in the United States of America — 
7 



94 CONSTITUTION OF THE CHURCH 

""Whereas, in the course of Divine Providence, the Protest- 
ant Episcopal Church in the United States of America has 
become independent of all foreign authority, civil or eccle- 
siastical " : — 

The preamble then recited the meeting of deputies in 
New-York in October, 1784, and the recommendation to send 
deputies to Philadelphia in order to unite in a Constitution of 
Ecclesiastical Government, agreeably to certain fundamental 
principles expressed in such recommendation, and it pro- 
ceeded — 

"And whereas, in consequence of the said recommenda- 
tion and proposal, clerical and lay deputies have been duly 
appointed from the said Church in the states of New-York, 
New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
and South Carolina: The said deputies being now assembled, 
and taking into consideration the importance of maintaining 
uniformity in doctrine, discipline, and worship in the said 
Church, do hereby determine and declare" — 

Then followed the articles of the constitution. Most of 
these are substantially the same as those now in force, as 
will be seen hereafter, when they are stated at length. 

The eleventh article was as follows: 

" The Constitution of the Protestant Episcopal Church in 
the United States of America, when ratified by the Church in 
a majority of the states assembled in General Convention 
with sufficient power for the purpose of such ratification, 
shall be unalterable by the convention of any particular state, 
which hall) been represented at the time of such ratification." 
(Bioren, 25.) 

On the 24th of June, 1786, the following recommendation 
was passed : " That the several state conventions do author- 
ize and empower the deputies to the next General Convention, 
after we shall have obtained a bishop or bishops in our 
Church, to confirm or ratify a general constitution respecting 



AND THE GENERAL CONVENTION. 95 

both the doctrine and discipline of the Protestant Episcopal 
Church." (Ibid. 26.) 

On the 10th of October, 1786, an adjourned convention 
was held, at which the chief business was the consideration 
of the letters by the Archbishop and "Bishops of England. 
The states of Virginia and Maryland were not represented in 
this adjourned convention. Copies of the proceedings were 
ordered to be sent to the standing committees. 

The next meeting of the General Convention was in July, 
1789. Bishops White, Seabury and Provoost had then been 
consecrated. 1 The former attended and presided. A com- 
mittee was appointed to take into consideration the proposed 
constitution, and to recommend such additions and alterations 
as they should think proper.' 3 

On the 1st of August, 1789, the committee reported the 
constitution. It consisted of nine articles, and it was re- 
solved, — " that the 1st, 2J, 4th, 5th, 6th, 7th and 8th articles 
be adopted, and stand in this order, 1, 2, 3., 4, 5, 6 and 7, 
and that they be a rule of conduct for this convention; and 
that the remaining articles, viz: the 3d and 9th, be postponed 
for future consideration." 

On the 7th of August, the convention discussed the two 
articles which had been postponed, and which, after amend- 
ment, were agreed to. The constitution was then ordered to 
be engrossed for signing. On the 8th of August, it was read 
and signed by the members of the convention. Every dele- 
gate appears to have subscribed it, except two from Delaware, 
and one from Maryland. Both clergy and laity-, however, of 
these states, were represented by those who did sign. 

On the 5th of August, 1789, the following resolves were 
unanimously passed: — 

" Resolved. That a complete order of Bishops, derived as 

* Bishop Seabury in 1784, Bishops White and Provoost in 1787. 
*Biore_n"s Ed. Journals. 47. 49. 



96 CONSTITUTION OF THE CHURCH 

well under the English as the Scottish line of Episcopacy, 
doth now subsist within the United States of America, in the 
persons of the Right Rev. William White, the Right Rev. 
Samuel Provoost, and the Right Rev. Samuel Seabury. 

"Resolved, That the said three Bishops are fully compe- 
tent to every proper act and duty of the Episcopal office and 
character in these United States, as well in respect to the 
consecration of other Bishops, and the ordering of priests and 
deacons, as for the government of the Church, according to 
such rules, canons and institutions as now are, or hereafter 
may be duly made and ordained by the Church." 

This convention was adjourned from August, 1789, to the 
29th of September ensuing, in order to meet the views of the 
churches of Massachussetts, Connecticut, and New Hamp- 
shire. At that time its labors were resumed. It was re- 
solved, the better to promote union with the eastern churches, 
that the general constitution was open to amendments and 
alterations. A committee was chosen to confer with the 
eastern churches. That committee reported the assent of the 
deputies from those churches to the constitution, except as to 
the third article ; and their readiness to unite, provided that 
this article was so amended as to authorize the Bishops, when 
sitting in a separate house, to originate any measures, and to 
negative the acts of the other house. The committee recom- 
mended the adoption of these suggested changes. The con- 
vention agreed to them, modifying the veto so that a law 
might be passed if adhered to by four-fifths of the House of 
Deputies. On the 2d of October, Bishop Seabury, and the 
other deputies from Connecticut, Massachusetts, and New 
Hampshire, gave their written assent to the constitution as 
that day modified ; and the labors and the cares of this con- 
vention ceased. 

Thus was accomplished the great work of the union of 
our Churches. Through the ordeal of long investigation, of 



AND THE GENERAL CONVENTION. 97 

thoughtful and wise councils, of admirable sted fastness in all 
matters essential, of laudable concession in all matters subor- 
dinate, the constitution was established. The fabric of the 
government of the Protestant Episcopal Church was founded 
upon the Apostolic rock, and built up of the living stones of 
the English Church. " Her fortifications, her walls, and her 
bastions are constructed of other materials than of stubble and 
of straw. They are built of the strong and stable matter of 
the Gospel of liberty. She has securities not shaken in any 
single battlement, in any single pinnacle." l 



The historical notices thus far presented, are important 
upon the inquiry, what are the principles by which the con- 
stitution and canons are to be expounded — -the extent of the 
power of the General Convention, and the obligatory force of 
its canons. 

TITLE IL 

In examining the great question of the power of the 
General Convention, it seems useful to conduct the inquiry 
under distinct heads. 

First, — -As to the power of the Convention of 1789 ; and 
this, in the first instance, in relation to the constitution; and 
next, in relation to the canons passed by that convention. 

Second, — As to the power of every subsequent General 
Convention, in regard to the constitution, and in regard to 
canons. 

I. Upon the powers of the General Convention of 1789, 
the starting point of the inquiry may be taken at the resolu- 
tion of June 24, 1788. No doubt what had passed before is 
historically important, and elucidatory of the views and action 
of the convention ; but strictly, this resolution will be found 
the first material fact bearing upon this question, 

1 Edmund Burke. 



98 CONSTITUTION OF THE CHURCH 

It was thereby recommended, that " the several state con- 
ventions authorize their deputies to the next General Con- 
vention, after we shall have obtained a Bishop or Bishops in 
our Church, to confirm or ratify a general constitution re- 
specting both the doctrine and discipline of the Protestant 
Episcopal Church." (Bioren, 20.) Bishop Seabury had been 
consecrated in November 1784, and Bishops White and Pro- 
voost were consecrated in February 1787. 

Several of the state conventions acted under this resolu- 
tion. 

In September, 1786, the Convention of New-York resolved, 
"that the deputies have discretionary powers with respect to 
any matters which may come into debate in the (xeneral Con- 
vention. 1 

In 1788, the same convention passed a resolution that the 
union of the Protestant Episcopal Church in the United States 
of America, is of great importance,, and much to be desired; 
and that the delegates to the next General Convention be 
instructed to promote that union by every prudent measure 
consistent with the constitution of the Church, and the con- 
tinuance of the Episcopal succession, in the English line. 2 

On the 19th May, 1787, the Convention of Virginia re- 
solved that the 1st, 2J, 3d, 5th, 6th, 7th, 8th, 10th and 11th 
articles of the constitution prepared in 1786, be acceded to; 
that the 4th and 9th be also acceded to, but as articles of a 
temporary nature, and not as forming a part of the general 
constitution. These related to the Book of Common Prayer. 

This convention also resolved, " that the recommendation 
of the General Convention, with regard to the powers to be 
given to the deputies to the next convention after a Bishop or 
Bishops were obtained, ought to be complied with " 3 

1 Journals Conv. of New-York, 1786. 

2 Journals Conv. of New- York, 1788. 

3 Journals of Virginia Convention, annexed to Hawks t Contributions. 
Dr. H;iwks states that he has been unable to discover any proceedings 
of a Convention in 1788. 



AND THE GENERAL CONVENTION. 90 

Jn Maryland, at, a session in June 1789, instructions were 
given to the deputies for the approaching General Convention, 
in relation to the proposed book. The convention ratified and 
approved it. It does not appear that there was any formal 
instruction given as to the constitution. 

The convention of South Carolina had in 1785 authorized 
their delegates to act according to their judgment. In April, 
1786, deputies were appointed, and also in May, 1789, for 
the ensuing July convention. 1 do not find that any instruc- 
tions were given at either of these meetings, nor whether the 
powers given in 1785 were deemed to remain in force. 

In June, 1787, the convention of New Jersey resolved, that 
this convention will proceed to the appointment of delegates 
to the next General Convention, with powers agreeable to the 
recommendation of the General Convention held in Phila- 
delphia in June, 1786 ; and such delegates were appointed. 

I do not find any notice of the action of Pennsylvania upon 
this point, except that in October, 17S6, clerical and lay 
delegates were elected to represent the diocese in the next 
General Convention. 1 In May, 1787, the deputies to the 
General Convention reported the acts of that body, and no 
resolution appears to have been taken. 

The action of Massachusetts and New Hampshire, bearing 
upon the point, as far as I have ascertained it, is stated in 
the note. It was not decisive as to the authority of the 
deputies. 

1 Notes on Eccl. History. Church Review, vol. iii. 

1 The Convention of Massachusetts, in 1785, resolved that it was 
not necessary nor convenient to send deputies to the General Conven- 
tion of that year. (Journal, 1785.) From the MSS. in the possession of 
the Rev. Dr. Jarvis. I am enabled to state some particulars as to the 
authority given to the Rev. Mr. Parker. The wardens, vestry, and 
congregation of Trinity Church, Newport, Rhode Island, on the 13th 
Sept., 1789, voted unanimously, ''That this congregation will for the 
future abide by and maintain such rules and orders, respecting both the 
doctrine and discipline of our Church, as have been determined upon 



100 CONSTITUTION OF THE CHURCH 

In Connecticut, a convention was held on the 15th of 
September, 1789, to take into consideration the invitation of 
the convention in Philadelphia. It was decided to send cleri- 
cal deputies to the meeting to be held on the 29th of that 
month. The Rev. Messrs. Hubbard and Jar vis were selected, 
and authorized to treat upon the terms of union, but with 
this restriction- — " That the proceedings in the said treaty 
should not be deemed conclusive till they should be considered 
and approved by the body of the clergy, their constituents." 1 

On the 30th July, 1789, the deputies to the General 
Convention from the several states were called upon to de- 
clare their powers relative to the object of the resolution of 
the 24th of June, 1786, which is recited in terms. They 
gave information that they came fully authorized to ratify a 
Book of Common Prayer, &c, for the use of the Church. So 
on the 30th July, upon the presentation of the credentials of 
the deputies from Delaware, they were requested to state 
their powers relative to the ratification of a Book of Common 
Prayer, &c, which were produced and deemed sufficient. 
(Bioren, p. 4.) 

In speaking of this matter, Dr. Hawks observes, " that 
the first convention, after obtaining the Episcopate, was held 
in July, 1789. At this meeting the delegates declared them- 

by the General Convention, held in the city of Philadelphia from the 
28th of July to the 8th of August last, or which may be determined 
upon by the convention which is to be held by adjournment in the city 
of Philadelphia, the 29th of the present month. Voted, that the Rev. 
Samuel Parker, D. D., be requested to represent us in the said conven- 
tion. Witnesses, John Handy, Robt. N. Auchmuty, churchwardens." 

The Rev. Dr. Parker was also appointed a deputy to represent 
Christ Church, Boston, by a vote of the wardens and vestry, of the 7th 
Sept., 1789; and was empowered to represent Trinity Church, Boston, 
by a similar vote of the 6th of September, that church declining to 
send any lay delegate. 

In June, 1789, at the meeting in Salem, he was deputed to repre- 
sent the clergymen there assembled. 

1 MSS. in the hands of Rev. Dr. Jarvis. 



AND THE GENERAL CONVENTION. 101 

selves authorized by their respective conventions to ratify a 
constitution." 1 Dr. Vfilson takes the same view. 8 

It may be added that there is nowhere a suggestion, that 
the constitution should be submitted to the state conventions. 

In many of the original states, however, a formal ratifi- 
cation took place. In South Carolina, at a convention of 
October 19, 1790, the general constitution and canons were 
unanimously adopted. (Dalcho.) In New- York, on the 4th 
November, 1789, a resolution, also unanimous, was passed, 
that the convention do approve and consider the Church in 
this state bound by the constitution lately adopted by the 
General Convention. 

The language admits of the construction, that the Church 
was deemed bound without the ratification, and the resolu- 
tion itself probably arose from the somewhat qualified resolu- 
tion of November, 1788, before mentioned. 

In Maryland, the Journal of the General Convention was 
presented in 1790. A committee was appointed by the con- 
vention upon the subject. That committee reported " that 
as far as the proceedings of the General Convention were 
warranted by the instructions given to the Maryland dele- 
gates, they are binding in Maryland. That the Prayer Book 
is obligatory and ought to be observed. That there was 
nothing in the constitution repugnant to the fundamental 
articles which had been adopted in Marylatld.' , The consti- 
tution was approved til in the convention, with one exception. 
That related to the 8th article, as to which it was declared, 
that as by it a power would be vested in a future General 
Convention, to establish such alterations in our articles of 
religion as they might think proper, without requiring the 
consent of the conventions in the several states, they regarded 
it as exceptionable, unless a proviso should be added that no 

1 Constitution and Canons, pp. 11, 12. 
•Life of Bishop White, p. 135. 



102 CONSTITUTION OF THE CHURCH 

such alterations should be obligatory unless the mode pre- 
scribed by the 9th article was pursued. There is no trace of 
any action either in the ensuing General Convention or in 
Maryland, resulting from this exception. On the contrary all 
the subsequent proceedings prove that the constitution was 
considered to be in full force. The act can only be looked 
upon as the expression of an opinion. 

No vote of ratification took place in Virginia. 1 

In New Jersey the convention of 1790 unanimously re- 
solved that the convention and Church of the state were bound 
by the proceedings. 

It appears that in Connecticut, the constitution was ap- 
proved by the convocation of the diocese, in October, 1790 ; 
but was not adopted by the several parishes so as to form a 
convention under it until 1792.° 

It will be remembered that in September, 1789, Bishop 
Seabury and two clergymen, deputies of the Church in Con- 
necticut, attended the Convention and ultimately signed the 
constitution. It is stated in the Journal, that the Rev. Dr. 

i The convention in that state terminated on the 8th of May, 1789. 
I have carefully examined the Journal of 1790, and find no trace of a 
vote of adoption. Or. the 1st May of that year, the Journal of the 
Genera] Convention was read and laid on the table. 

9 Prefatory note to the Journals of Connecticut. Among the MSS- 
in the possession of the Rev. Dr. Jarvis. are the minutes of numerous 
conventions and convocations prior to the date of the first convention 
in the published Journal. From this it appears that on the 1st of 
October, 1790, a convocation was held, and the question was put 
whether we confirm the doings of our proctors in the General Conven- 
tion at Philadelphia, on the 2d of October, 1789, which passed in the 
affirmative by the vote of every member present except one. (15 to 1.) 

On the 15th of February, 1792, it was resolved that unless the 

wardens and vestrymen of church, should transmit to the Bishop 

within fourteen days after Easter- Monday next, a notification that the 
congregation of such church have adopted the Constitution of the Pro- 
testant Episcopal Church as settled by the General Convention of 1789, 
they (the congregation) will be considered as having totally separated 
themselves from the Church of Connecticut. 



AND THE GENERAL CONVENTION. 103 

Samuel Parker attended as deputy from the churches in Mas- 
sachusetts and New Hampshire. On the 2d October, 1789, 
Dr. Parker agreed to the Constitution* as such deputy, and 
signed it on the third of that month. 

In 1790, a constitution for the Church in the common- 
wealth was submitted to the Convention of Massa- 
chusetts, and unanimously approved. It was directed to be 
submitted to the various churches in that state, in Rhode- 
Island, and in New Hampshire,, with a recommendation that 
lay deputies be appointed who should, with the consent of the 
clergy, establish a constitution for the future government of 
the said churches. In January, 1791, the Convention of Massa- 
chusetts ratified that constitution unanimously, and on the 
same day a resolution passed, recommending the several con- 
gregations to instruct their deputies to the next convention, on 
the subject of adopting the constitution and form of prayer, set 
forth by the General Convention holden at Philadelphia, in Oc- 
tober, 1789. The convention again met in May, 1791, when the 
following action took place : " The convention took into con- 
sideration the general constitution agreed on in Philadelphia 
in October, 1789, which was read and considered by para- 
graphs, and after some debate the question was put, ' shall 
the said constitution be adopted. 7 The result was a vote in 
the affirmative of 4 to 2 of the clergy, and 5 to 2 individually 
of the laity ; or three churches to one." 

I find no other action to have taken place in Pennsylvania, 
except that at the convention held in June, 1790, the Consti- 
tution of the Protestant Episcopal Church in the United 
States was read, and notice was given that it was proposed 
to consider and determine whether the House of Bishops should 
be invested with a full negative on the proceedings of the 
other House. 

From the foregoing statement of facts it may fairly be 
deduced that the deputies to the General Convention of 1789 



104 CONSTITUTION OF THE CHURCH 

regarded themselves and were treated by their associates, as 
vested with full power to form a constitution for the Church ; 
that this authority was afterwards generally recognized; and 
it then results that the constitution derived its power and be- 
came the controlling law from the assent of the deputies in 
the convention of 1789. The ratifications which took place 
in any of the states were not essential to its validity, however 
useful as recognitions and confirmations of the authorities of 
the delegates. Yet the conclusion need not be pressed further 
than this, that the constitution was binding on the original 
states, unless there was an act of disavowal and rejection. By 
the original states I mean New- York, New Jersey, Penn- 
sylvania, Delaware, Maryland, Virginia and South Carolina. 
It was rightfully within their power to judge whether their 
instructions had been adhered to, and to ratify or reject ac- 
cordingly. It was within their power to have refused their 
consent at all. But when they did not assert a deviation 
from authority by their delegates, nor simply refuse an assent, 
their silence and acquiescence bound them, and bound them 
because of the powers they had bestowed upon their agents. 

But as to Connecticut, the powers of the delegates having 
been expressly restricted, so that a confirmation was necessary, 
the constitution only became obligatory upon the ratification 
by the convocation in 1790, and the approval of the parishes 
prior to June 1792. So as to Massachusetts, it can scarcely 
be said that the Rev. Dr. Parker, appointed by the clergy who 
met at Salem, as their representative, was the representative 
of the whole church of that state. No instructions had been 
given — no competent power delegated ; and it follows that 
Massachusetts came into the union by virtue of the act of its 
convention of 1791, in like manner as any other diocese has 
subsequently come in, adopting the general constitution by a 
positive act. 

II. But next, what was the power of the convention of 



AND THE GENERAL CONVENTION. 105 

1789, as to the enactment of canons? Upon this question, 
one fact has struck me as of marked importance. The con- 
vention of 1789 passed, on the 7th August, a series of canons, 
and, in point of time, passed them before the constitution 
itself was finally adopted. It is true that all the articles but 
two had been ratified on the first of August, and declared to 
be the rule of conduct of the convention ; yet it is impossible, 
even in this view, to hold that the canons were passed under 
the constitution, because there is not a clause in that instru- 
ment which, as to the greater part of them, can be appealed 
to as the source of the power to enact them. This point will 
be more fully entered into hereafter. 

On the 31st July, 1789, a committee was appointed to 
report a body of canons. On the 5th August, that committee 
reported. The canons submitted were discussed on that and 
two subsequent days, and on the 7th August were engrossed 
and adopted, and ordered to be signed by the president and 
secretary. It was subsequently, though on the same day, 
that the 3d and 9th articles of the constitution were adopted, 
and the whole ordered to be engrossed. On the 8th it was 
read, and signed. A committee was also appointed to prepare 
and report other canons to the next convention. 

The canons passed in 1789, correspond substantially with 
the 1st, 3d, 25th, 8th, 19th, 15th and 20th of those of 1832, 
the 5th of 1838, and the 9th of 1844. 

And these canons were received in the separate conven- 
tions, and treated as being of equal authority with the consti- 
tution. 

In Virginia, on the 7th May, 1799, a resolution was passed 
which recognised the binding force of the 7th general canon; 
and on the 8th May another resolution was adopted, instruct- 
ing the deputies to attempt its amendment. 1 The constitution 

[ Contributions, fyc.j of Dr. Hawks, vol. i. pp. 30 and 31 of the Journals. 



106 CONSTITUTION OF THE CHURCH 

and canons were directed to be printed with those of the 
diocese, and annexed to the journal. 

The Convention of New-York, in November 1799, declared 
certain rules which had been before adopted, to be superseded 
by the canons of the General Convention ; and at a subse- 
quent meeting, it was referred to a committee to ascertain 
what part of the prior regulations required to be abolished or 
modified, by reason of such constitution and canons. 1 

In February 1807, a committee was appointed by the 
Convention of South Carolina, to inquire and ascertain whe- 
ther the constitution and canons of the Protestant Episcopal 
Church of the United States had been adopted by the Church 
in South Carolina. The committee recited the resolution of 
1790, adopting the constitution which has been before noticed, 
and reported in the affirmative. The convention divided the 
subject into two parts : first, as to the constitution and the 
canons of 1789 ; next, as to the canons subsequently passed. 
The first were unanimously declared to be in force ; as to the 
last, some discussion arose, during which a resolution was 
offered, declaring such of the subsequent canons to be binding, 
as were not repugnant to the constitution. 

The matter terminated by instructing the delegates to 
the General Convention to move for a repeal of the 2d and 
9lh canon of 1804, which were obnoxious to the churches of 
the state. These related to inductions and the dismissal of 
ministers, and were afterwards modified. 2 

A convention of New Jersey met in June, 1790. The 
deputies to the General Convention reported, "That agreea- 
bly to the powers committed to them, they had concurred 
in forming and establishing a constitution for the Protestant 
Episcopal Church in these states, certain canons for the gov- 
ernment of such Church, and also a Book of Common Prayer, 

1 Journal New-York, p. 38. 
9 Dalcho's History. 



AND THE GENERAL CONVENTION. 107 

and administration of the Sacraments, &c." It was resolved, 
unanimously, that the convention and Church of this state 
are bound by said proceedings. 

The committee to which, as before mentioned, the Journal 
of the General Convention was referred in Maryland, in 
1790, also reported, " That upon an extensive examination of 
the canons framed by the said General Convention for the 
regulation of the whole Church, the committee are also of 
opinion that, the same are entirely consistent with the said 
fundamental articles and doctrine, and that therefore they 
ought to be confirmed by this convention, and received as 
general canons for the government of the Church within this 
state. 

That in order to adapt the canons of the Church within 
this state, to the constitution and canons framed by the Gene- 
ral Convention fur the government of the Church within the 
United States, the committee are of opinion that a select 
number of this convention be appointed to prepare and report 
a draft for their consideration, and to include therein such 
ruies and canons as may be deemed necessary for the com- 
plete government of the Church within this state, the same 
not being inconsistent with the constitution or canons estab- 
lished by the General Convention." 

This report was adopted. 

The earliest notice I find of the canons in Massachusetts 
is in 1709, when a resolution passed that the constitution of 
the Church be printed, and added to the constitution and 
canons of the General Convention, if such be printed. 

In 1802, a canon was adopted by which it was provided 
that disorderly and unusual conduct — neglect of duty, disre- 
gard to the constitution or canons of the General or State 
Convention, &c, were offences for which a clergyman ought 
to be censured. 

The ratification of the Convocation of Connecticut, be- 



108 CONSTITUTION OF THE CHURCH 

fore stated, extended to all the acts of the delegates, and 
therefore comprised the canons. At the convention of 1790 in 
Pennsylvania, the constitution, as before observed, was 
read ; but there was no distinct action in relation to the 
canons. In 1793, however, certain of the regulations of that 
Diocese were expunged, as being superseded by the canons of 
the G-eneral Convention. 

Upon this question of the force of the canons of the General 
Convention of 1789, and the power ol that body to pass them, 
there are two theories. One is, that the convention had as 
ample power to pass these canons, as it had to adopt a con- 
stitution ; the other, that the authority was assumed, and the 
canons became the law in the several states only when ac- 
tually ratified, or from long acquiescence and submission. \ 

It must again be noticed, that most of these canons aro 
not to be supported upon any clause of the constitution — were 
framed irrespective of it — -and were actually passed before the 
constitution was adopted. 

Let us consider the consequences of the doctrine that the 
canons became the law only by ratification or acquiescence. 
By the one or the other, they became the settled law of the 
whole Church of the United States. What power, then, had 
any subsequent General Convention to repeal or modify them ? 
Was not any act of repeal or modification in itself invalid, 
only capable of receiving validity from express sanction, or 
Ions: submission ? 

And in the absence of express sanction to the repeal, what 
length of time would have amounted to proof of acquiescence, 
so as to render the repeal binding ? If an express sanction to 
any set of canons had been given by a diocese, would it 
amount to a permission, or a compact ? If the former, it was 
at any moment revocable. Would the revocation of an assent 
to the repeal have reinstated the repealed canons ? 



AND THE GENERAL CONVENTION. 109 

Again, — The original canons were, by a compact of the 
whole Church, (at least in the ten states,) the general law. 
If the Greneral Convention could not repeal them, neither 
coalJ any number of dioceses short of the whole, or short of a 
majority. Was the repeal in abeyance, until all or a majority 
had acted, or until such a period had elapsed as warranted 
the presumption of the assent of all? 

Once, more, — If the canons of 1789 depended for their 
obligatory power upon recognition positive or implied, then 
clearly in the latter case, and probably in the former, every 
diocese could supersede them, and establish a different law of 
its own upon the very subject matter of those canons. 

From such difficulties, contradictions, and discordancies, 
what refuge have we except in that other and more compre- 
hensive theory of the power of the General Convention of 
1789? It may thus be stated. That convention, under the 
powers given to its delegates, strengthened by the ratifications 
of the dioceses, (e^en if strietly needless,) was constituted and 
approved as a body of supreme absolute power, to establish an 
ecclesiastical government for the whole Cliurch of the United 
States. It seems useless to advert to the few limitations 
upon this power. Now it appears to me a clear proposition, 
that the authority to frame a whole code for the government 
of the Church could have been lawfully carried into effect, 
both by a constitution concentrating fundamental principles 
and perpetuating an organization, and by canons adapted to 
meet the various cases and details of government. The con- 
vention was equally competent for both. It could, by the 
very letter of its commission, have inserted in a constitution 
all regulations "respecting both the doctrine and discipline of 
tlie Church;" and if it could do this, it could embody such 
of them as it thought proper in a code of canons. 

The question, then, before the convention of 1 .789, was 
one of selection and division; viz.: what points of govern- 
8 



110' CONSTITUTION OF THE CHURCH 

ment should be inserted in a constitution, (only to render them 
more stable, and 1he difficulty of altering or reversing them 
greater,) and what should remain in the shape of laws alter- 
able at any meeting. 



SECTION 3. 

Assuming the soundness of this theory, we establish the 
binding force of the canons of 1789, but are yet to ascertain 
what is the power of subsequent General Conventions in rela- 
tion to the laws of the Church — whence they have derived 
their power, and what is its extent ? This was the second 
subject of examination. 

The answer is plain. The development of the foregoing 
propositions inevitably leads to the conclusion that the power 
of the Convention of 1789 involved the power of rendering 
the system of government stable and enduring. Its office was 
not to establish a fugitive coalition, but a perpetual union. 
It possessed therefore the right of instituting and providing 
for the continuance of a body, with similar jurisdiction to its 
own ; a body in which should reside all authority necessary 
for the purposes, and commensurate with the object of the 
Church ; a body essentially of superior ultimate jurisdiction. 
Such a body was established when it was declared "that 
there should be a General Convention of the Protestant Epis- 
copal Church of the United States." Provision was made for 
its renovation and perpetuity ; the elements of its organization 
were prescribed, and certain self-imposed restrictions were 
proclaimed. 

There is another and a higher view of the question. From 
the foundation of Christianity, there never has been a Church 
without a body in which resided the ultimate and absolute 
power of government. In its earliest age, even two apostles 
would not assume the office of deciding the question raised 
at Antioch as to the circumcision of the Gentiles, but referred 



AND THE GENERAL CONVENTION. Hi 

it to the judgment of the Council at Jerusalem. Passing by 
the great representation of the Church universal in the four 
first Councils, what national or provincial Church has ever 
been known without such a predominant body ? It is anoma- 
lous and contradictory to speak of such a Church without it, 
When then, in 1789, the whole Church of the United States, 
through its competent representatives, declared, ''there shall be 
a General Convention of the Protestant Episcopal Church in 
the United States," it enunciated the great principle that this 
was a national Church, and that such a Convention was to be 
its highest Council. The mere act of establishing this Council 
involved and attached to it every power inherent in such a 
body, and not expressly refused to it. Such powers are to be 
ascertained from the laws and practice of the apostles, the 
voice of ancient witnesses, the uninterrupted descent from age 
to age, from council to council, of known, and exercised, and 
unquestioned sway. 

On the very day that the constitution went into effect the 
Church in the United States had all the essential elements of 
a national Church. It had its Bishops. It had three Bishops 
within its limits, competent to transmit the succession and 
sufficient to compose a Synod. 1 The earnest objections of the 
clergy of Connecticut strongly set forth in the letter of the 
Rev. Mr. Jarvis of 1783, and urged with such power in the 
address of the Convention of New Jersey in 1786, had been 
removed. 2 All the elements of a primitive apostolic Church 
in its perfection had been acquired. Imperfection existed in 
an undue conventional restriction of the power of the Bishops, 

1 On the 5th August, 1789, a resolution was unanimously adopted, 
that a complete order of Bishops, derived as well under the English as 
the Scottish line of Episcopacy, doth now subsist within the United 
States of America, in the persons of the Rt. Rev. William White, the 
Rt. Rev. Samuel Provoost, and the Rt. Rev. Samuel Seabury. — (Journals 
of the Gen. Conv. p. 53.) 

a Memoirs of the Church, 332. Ibid. 357. 



112 CONSTITUTION OF THE CHURCH 

and in other details; but the seeds of truth and primitive 
order were there, and gradually ripened, expanded, and pre- 
vailed. 

In this situation, on the 2d October, 1789, the constitution 
was adopted. On the 3d of that month it was resolved that 
agreeably to the constitution, there is now in the convention 
a separate House of Bishops, and the Bishops then withdrew. 
On the 5th October, the House of Bishops met, and it was 
provided that the senior Bishop should be the president. 

"What then prevents the conclusion, that thus was insti- 
tuted the superior council of the Church of the United States? 
Not because there was no prelate answering to the Arch- 
bishop, or Metropolitan, found in provincial councils. In 
relation to such assemblies, he was no more than the sum- 
moning and presiding officer. The Bishops in council could 
overrule him, and he could not dissolve a meeting without 
their consent. Not because the inferior clergy formed a part 
of the council, with an equal voice in the enactment of laws. 
There are traces of their presence in almost every period, 
whatever may have been the extent of their power. But in 
England, especially since these bodies assumed the form of 
convocations, they have had a co-ordinate authority in this 
particular. In the province of Canterbury, also, they delib- 
erated in a separate chamber. Nor again can it be, because 
the laity were admitted as members with a concurrent 
power in the making of canons. 

Without entering into that discussion which* the work of 
Sir Peter King produced, I content myself with the highest 
authority on one side of the question known to the American 
Church — that of Bishop Seabury. The main point of his ob- 
jections to the introduction of the laity, contained in his cele- 
brated letter of 1785, was their power to sit upon the trial of 
Bishops and Presbyters. But he united in a constitution 
which gave them co-equal authority in the formation of laws 






AND THE GENERAL CONVENTION 113 

for the general Church, and he consented to their introduc- 
tion into the Convention of Connecticut. This is sufficient to 
prove, that in the judgment of that eminent prelate, the 
presence and power of the laity in councils was no violation 
of the principles of a primitive Church, if not literally in ac- 
cordance with primitive practice. 1 

We must distinguish between the convention of 1739, 
and the General Convention established by it. The former 
was an imperfect body, constituted to legislate for an imperfect 
Church ; but with power, when there were Bishops of the 
Church, to institute an organ for continuing and administer- 
ing its government. The Bishops, two of them by their 
actual presence and participation, and the other by his then 
implied and subsequent express ratification, united in the for- 
mation of that body. These Bishops submitted to certain 
modifications of the model of a national or provincial council. 
In their judgment these changes were compatible with the 
apostolic constitution of the Church ; and when the conven- 
tion of 1792 assembled, it met as the pre-eminent synod, as 
the Protestant Episcopal Church of the United States by 
representation. And amongst its acts, at that meeting, was 
the republication, or re-enactment, of the canons of 1789. 
(Journals, 1792, Bioren.) 

The remarks on this most important subject have been 
much extended — a few observations will conclude them. In 
1786, a constitution was first announced, and the deputies 
say, that " taking into consideration the importance of main- 
taining uniformity in doctrine, discipline and worship in the 
said Church," they do declare and determine, " that there 
shall be a General Convention of the Protestant Episcopal 
Church in the United States." Such was the article as 

1 1 refer to a note to the Articles of the Constitution (post. Title 2) 
for authorities as to the composition of these councils, and in support of 
t he above position. 



114 CONSTITUTION OF THE CHURCH 

adopted in 1789, and thus has it continued since. Now, 
what could possibly achieve the object of maintaining uni- 
formity in discipline and worship, but this principle of ulti- 
mate authority in some constitutional body? "What else 
could fulfil the primitive law of unity and perfection in a 
national Church — what else could have met the difficulties 
and exigencies of those days? Nothing saved us then, 
nothing but this can save us now, from being the dissevered 
members of separate congregations, and not the compact body 
of a national Church. I know there are some who look upon 
this union with distrust, and others with indifference ; but 
the holiest and wisest of our fathers toiled for and prayed 
for it day and night — sorrowed as the cause was in tribula- 
tion, and rejoiced with joy unspeakable when it prospered. I 
believe that in spite of much that has been wrong, and more 
that has been imperfect, the prophetic visions of spiritual 
growth and beauty which arose upon their faith-brightened 
eyes, have been realized in the history of the Church, and 
realized through union. 

Thus we have a theory of the power of the General Con- 
vention, adequate, consistent, and practical. There is neither 
safety, union, nor progress in any other; but there is every 
element of discord, and every omen of decay. I humbly trust 
that it will be found as well fortified by facts and argument, 
as it is simple and decisive. 

And as to those dioceses which have subsequently come 
into union, the provisions of the fifth article of the constitu- 
tion coupled with (though not receiving their force from) the 
declarative recognitions in the constitutions of such dioceses, 
give to the General Convention the same full authority and 
legislative power. 1 

1 The following is the form, with, slight verbal changes, in the 
constitution of North Carolina, Georgia, Mississippi, Louisiana and 
Ohio: — " The Protestant Episcopal Church in this state, adopts, ac- 



AND THE GENERAL CONVENTION. H5 

It has been before observed, that the great bulk of the 
canons cannot be supported upon the ground that the power 
to pass them is derived from any clause of the constitution. 
This point requires further consideration. 

Looking to the source of the power of the delegates, by 
whom the constitution and canons were formed, we might be 
led to the supposition that the analogies of the Constitution of 
the United States would prevail; and that the question upon 
any law of the convention would be, whether the power to 
make it had been expressly granted, or by a necessary impli- 
cation was vested in it under some clause of the constitution. 

But this rule of construction will be found inapplicable. 
It is impossible to find in that instrument, either in express 
ianguag3, or by any warrantable inference, any provisions on 
which to rest the validity of the greater part of the canons. 
Every power rightfully exercised by the Grovernment of the 
United States in any of its branches, has its source and its 
bounds in some clause of the Constitution of the United States; 
but it would be vain to seek for such a sanction for most of 
our canons. 

For example : — -the present 37th canon defines the offences 
for which a minister may be tried and punished. By other 
canons, certain offences or neglects are punishable or censu- 
rable. There is not a sentence in the constitution upon which 
these provisions can be placed as their authority and warrant. 

cedes to, and recognizes the general constitution of the Protestant 
Episcopal Church of the United States, and acknowledges its authority 
accordingly." In the constitution of Missouri, it is thus: — -'This 
Church acknowledges the authority of the General Convention of the 
Protestant Episcopal Church in the United States of America." Of 
Wisconsin : — ■" The Church in the diocese of Wisconsin, desirous of en- 
tering into federal union with the Protestant Episcopal Church in the 
United States of America, does accordingly accede to, recognise and 
adopt the general constitution and canons of that Church, and acknow- 
ledges its authority accordingly." There is a similar clause in the 
constitution of South Carolina. There is none in that of Maine, New- 
York, Western New-York^ or Maryland. 



116 CONSTITUTION OF THE CHURCH 

We may classify the articles of the constitution thus : 

First, such as relate to the establishment and organization 
of a General Convention — its mode of performing business, and 
the alteration of the constitution. The first, second, third, fifth 
and ninth articles fall within this class. 

Second. Such as confer upon the convention a power to 
legislate. 

Third. Such as are in themselves positive acts of legisla- 
tion. 

Nothing falls under the second class but the first two 
sentences of the sixth article as to trying Bishops, and that 
part of the eighth article which contemplates a future action 
as to the Prayer Book. The fifth canon falls, in part, within 
the first, and partly within the second class. All other pro- 
visions are within the third. 

We have here a very limited foundation for the legislation 
of the convention over the whole Church. In truth upon the 
doctrine of deriving authority from the constitution, there 
would be no power in it, except to regulate its own organiza- 
tion, to govern all changes in the Prayer Book, and to direct 
the trial of Bishops. 

And from the view we have now taken, two classes of 
powers exist in this body — those conferred by the constitution 
and those possessed without being so conferred. I have before 
stated what fall under the first head. 

And as to the other powers, they vest in the General Con- 
vention by reason of its inherent sovereignty, and from their 
very nature cannot receive a strict definition or circumscrip- 
tion. 

From this doctrine, some general rules necessarily flow. 
1st. That, generally speaking in instances of the first 
class, viz : those in which a power to legislate is expressly 
given, all authority of the separate dioceses upon the subject 
is superseded at once, and before and without any exercise of 
the power by the General Convention. 



AND THE GENERAL CONVENTION. 117 

2d. That until an act of legislation upon any such subject 
as the convention can act upon within the second class of 
powers, the authority of the dioceses is entire and unrestricted. 

3d. That when an act of the General Convention upon 
such a matter is passed, it becomes the supreme law ; super- 
seding what has been done in a diocese or any power of a 
diocese at variance with it, and superseding the right to make 
any similar provision in a diocese ad idem ; but abridging the 
power of the dioceses only so far as the law by just intend- 
ment extends. 

4th. That therefore the dioceses still retain the power to 
legislate upon the same subject matter beyond the legislation 
of the convention, if no repugnance exists between the dif- 
ferent acts of legislation. 

I proceed to some illustrations of the above principles. 

1st. A part of the sixth article, as before observed, confers 
a power upon the General Convention to legislate. The pro- 
vision is this: — "The mode of trying Bishops shall be pro- 
vided by the General Convention. The court appointed for 
that purpose shall be composed of Bishops only." 

This clause was adopted in 1841. From the moment of 
its passage, I apprehend, the whole power of the diocese over 
the subject was annulled. The power thus conferred was ex- 
clusive in its very nature, and did not require that it should 
be exercised to produce an inhibition upon the dioceses. 

It is true the General Convention passed a canon at the 
same session in which this part of the constitution went into 
effect ; but had they deferred it, still the dioceses could not 
have legislated in the matter ; and clearly there could be no 
concurrent legislation after the convention did act. The his- 
tory of this article will, I think, render this more clear, and 
be instructive upon the subject at large. (See post. Article 6.) 

2d. The eighth article furnishes an exemplification of the 
principles now suggested of another kind. It directs that a 



118 CONSTITUTION OF THE CHURCH 

Book of Common Prayer, &c., when established by this or a 
future General Convention, shall be used in the Protestant 
Episcopal Church in those states which shall have adopted 
this constitution. 

The Book of Common Prayer was ratified and established 
by a resolution of the Convention, dated the 16th day of Oc- 
tober, 1789, but it was provided that it should go into effect 
on the first day of October, 1790. Now, unquestionably, 
during this interim, as well as during any period until the 
convention acted, the Church in the several states had the 
same control over the Prayer Book to amend and establish it 
for each state, as the General Convention acquired for the 
whole Church. 

The ninth article of the constitution of 1785 indeed left the 
whole matter to them. But after the 1st of October, 1790, 
this eighth article became permanent and perfectly exclusive. 
There did not remain the slightest power over the subject in 
any Diocesan Convention. 

Thus we find that, in 1787, a resolution was adopted in 
New- York, that until further provision be made by the Gen- 
eral Convention, the respective congregations of this Church 
be at liberty to use the new form of prayer or the old, as they 
respectively may think proper. (Journals N. Y., p. 17.) 

3. An illustration of the fourth proposition may be found 
in an act of the convention of Maryland, of 1847. A com- 
mittee appointed for that purpose, reported a set of canons, 
marked with great ability and care. Among them was one 
(the fifth) declaring what offences of clergymen are punish- 
able. This canon enumerated the offences declared in the 
37th canon of the General Convention, and added other dis- 
tinct offences taken from a former canon of Maryland respect- 
ing the laity. The committee say, " The language of our 
present 22d canon has the appearance of great vagueness. It 
has, therefore, been thought expedient to substitute for it an 



AND THE GENERAL CONVENTION. 119 

enumeration of offences, taken partly from the 37th canon of 
the General Convention of 1832, and partly from the 17th 
canon of the old Maryland code, which defines the offences for 
which a layman is liable to trial." A minority report, signed 
by Mr. Carroll, and drawn up with great ability and admira- 
ble perspicuity, treated the proposed canon as unconstitutional. 
It would be extremely difficult for any one to refute the 
premises of this report ; but the conclusion does not seem 
warranted. 

The journal does not furnish the reasons by which the 
report of the committee was sustained. From the character 
of the gentlemen of that committee, they, no doubt, were far 
more full and convincing than those I proceed to suggest. 

If the principles which I have supposed to exist are sound, 
they answer the argument of Mr. Carroll. There was no such 
exclusive power upon the subject vested in the General Con- 
vention as precluded a diocese from acting before the General 
Convention did act. But there was a power in that convention 
to act, and when they did so, their rule became absolute and 
paramount; yet absolute and paramount to the extent to 
which it went, and no further. That convention pronounced 
certain offences punishable. No diocese could reverse or mo- 
dify that law. But it did not pronounce that such enume- 
rated offences were the only offences punishable. This allowed 
the diocese to enlarge the number within its own limits, if it 
was thought proper. The 3d canon of the diocese of Con- 
necticut must be illegal, if this of Maryland is so. It contains 
an enumeration of triable offences, some of which are not in- 
cluded in the general canon. 

Such I consider to be the power of the General Convention, 
and the remnant of authority left to the dioceses. But there 
are some restrictions upon this power, which arises from its 
nature and the object of its establishment. 

The following may, I think, be laid down as free from 
difficulty. 



120 CONSTITUTION" OF THE CHURCH 

1st. The General Convention cannot pass a canon con- 
flicting with the general constitution. 

2d. It cannot adopt any canon for discipline of a limited 
and local operation. It must be for the whole Church, and 
uniform throughout the Church. 

But is there not also some limit to its power in the con- 
stitutions and regulations of the churches of the dioceses — 
some subjects of internal government which it may not touch ? 
The question is one of great moment and nicety. I proceed 
to state some facts and to make some suggestions upon the 
subject. 

It would, on first consideration, appear indisputable, that 
the regulation of a diocesan convention, and the qualifications 
of its members, were exclusively within its own control. We 
might, in like manner, suppose that the bodies through which 
its internal government was to be carried on, would be con- 
stituted solely by the separate conventions, and in such man- 
ner as they thought fit. Yet, as to the latter, there has been, 
since 1789, a canon unquestioned and submitted to, directing 
that there shall be a standing committee appointed in every 
diocese; since 1808, another, declaring the duties of such 
committee ; and since 1832, another, providing that these 
duties, except as provided for in the canons of the General 
Convention, may be prescribed by the canons of the respect- 
ive dioceses. 

"With regard to the other point, there are historical facts 
and actions of conventions, of great importance and interest. 

In the year 1804, the General Convention passed a canon 
declaring that no minister who may be hereafter elected into 
any parish or church shall be considered a regularly ad- 
mitted and settled parochial minister in any diocese or state, 
nor shall as such have any vote in the choice of a bishop, 
until he shall have been inducted according to the office pre- 
scribed by this Church. 



AND THE GENERAL CONVENTION. 121 

At the same time the Office of Induction was adopted. 

Bishop White states (Memoirs, p. 255,) " that the requir- 
ing induction as essential to a valid settlement, was perceived 
to militate against the idea so generally prevalent in many 
places of dismissing ministers at pleasure. In Maryland the 
measure interfered directly with the vestry law. From 
Carolina there was a memorial desiring an alteration of the 
canon." 

The vestry act of Maryland was passed in 179S, and gave 
to the vestry the power of electing a minister, and making 
a contract with him for his services. It vested him with the 
right to the glebe, rents, and other property of the parish, 
unless he otherwise contracted with the parish. 

This act, it must be remembered, had been accepted and 
acted upon by the Church in that state. Dr. Hawks states 
other objections made to the canons. 1 

I have before noticed the action of South Carolina upon 
this subject. The opposition led to the modification in 1S08, 
declaring that the canons, (this and the 2d canon of 1804,) 
should not be obligatory upon those states or dioceses with 
whose usages, laws or charters, they interfered. The phrase 
induction was also changed to institution.* 2 

The canon of 1804 presented two points for consideration : 
1st, the necessity of induction, to render a minister's settle- 
ment in a parish valid for any purpose : 2d, its necessity to 
render the minister capable of voting for a Bishop, or being a 

1 Vol. 2, p. 263. These objections spring from old habits, traces of 
which are to be found at a very early period. In Virginia, under an 
act of 1682, presentation was to be made by the vestry, ami induction 
by the governor : without the latter the clergyman had no freehold in 
the living, but was removable at pleasure. Hence there were few oi 
the clergy who could prevail on their vestries to present them for in- 
duction ; the general custom, therefore, was to hire the minister from 
year to year. HjwJc.s 7 Contributions, vol. 1, p. 88. 

a Dr. Hawks considers that the terms were synonymous as used by 
the convention in 1804 and 1808. 



122 CONSTITUTION OF THE CHURCH 

member of the General Convention, or even of a diocesan con- 
vention. 

My business at present is with the latter effect and bearing 
of the canon. 1 

And the action of New- York is here very important. 

In 1802, the convention of that diocese unanimously 
adopted an office of induction into the rectorship of a parish, 
and also a canon prescribing the use of the said office at the 
settlement of every rector. It ran thus : " No minister shall 
be considered as regularly inducted or settled hereafter as the 
rector of any parish, except he has been inducted according to 
the Office of Induction prescribed by this convention."' 3 

On the 8th of October, 1806, a resolution was moved and 
seconded, " That the General Convention of the Protestant 
Episcopal Church in the United States have no authority to 
prescribe the qualifications necessary to entitle a person to a 
seat and vote in this convention. Resolved, that by the con- 
stitution of the Church in this state, every officiating minister, 
regularly admitted and settled in some church within this 
state which is in union with this convention, has a right to 
sit and vote in this convention. Resolved, that the Rev. Mr. 
S. having been called and inducted as rector of the church of 

, in the manner prescribed by the laws of the state, 

he is regularly admitted and settled in the said church, and 
it being within this state, and in union with this convention, 
the said Mr. S. is entitled to sit and vote in this convention." 

1 With regard to" the former question, the difficulty' seems to have 
been that the institution tended to confer rights, and extend the period 
of a minister's connection with the parish, beyond what was agreed 
upon by the terms of the call. 

As the office originally stood, there may have been ground for this 
comment, but only from the form of the letter of institution, not in the 
office itself, to which the wardens representing the parish, were 
parties. 

2 Journals N. Y. Convention, pp. 116-119. 



AND THE GENERAL CONVENTION. 123 

It was moved and seconded that the foregoing resolutions 
be postponed for the purpose of introducing the following : — 

"Resolved, that the ecclesiastical authority possesses the 
inherent and independent right to determine the qualifications 
of the members of its several judicatories, or ecclesiastical 
bodies; and that the Rev. Mr. S., not possessing the qualifica- 
tions required by the authority of the Church, would not be 
entitled to a seat in the convention. 

" Resolved, that agreeably to the constitution and canons 
of this Church, it being necessary that every presbyter should 
be inducted, according to the office of induction, before he can 
be considered as a regularly admitted and settled clergyman, 
a presbyter not so inducted cannot be entitled to a seat in this 
convention ; the Office of Induction, prescribed by the General 
Convention of the Church, being the ecclesiastical recognition 
of his rectorship — but in no respects interfering with civil con- 
tracts — with the rights of vestries to settle duly qualified 
clergymen on whatever terms they may deem proper, or with 
the temporalities of parishes ; which temporalities must be 
vested in the rector, by the vestries, before the bishop can give 
him authority to claim or enjoy them." 

These resolutions, as I am informed by Bishop Onderdonk, 
were generally understood to have been drawn by Bishop Ho- 
bart. No one can refrain from admiring the remarkable pre- 
cision and legal accuracy of the language. 

The question of postponement, for the purpose aforesaid, 
being taken, was decided in the affirmative, with only a few 
dissenting voices. And the question being taken on the last 
named resolutions severally, they were adopted with the same 
result. 

In 1820 the following preamble and resolution were 
passed : 

" It having been the usage of this diocese, previous to the 
passage of the 29th canon of the General Convention of 1808, 



124 CONSTITUTION OF THE CHURCH 

to consider as regularly admitted and settled parochial min- 
isters in the sense of the third article of the constitution of this 
Church, all clergymen entrusted with the cure of parishes 
within the same — Therefore, Resolved, that all such, al- 
though not instituted agreeably to the office prescribed in the 
said 2.9th canon, shall hereafter be considered members of 
this convention." Under this resolution a number of clergy- 
men took their seats as members. 

This resolution, at first, appears strange after the action 
of the diocese in 1802, respecting induction, and that of 1806. 
A close examination, however, will show some plausible dis- 
tinctions on which inconsistency may be avoided. At any 
rate, the vote of New- York has given its testimony to two 
propositions — first, that the General Convention had the un- 
questioned power to prescribe institution as a qualification of 
members of a diocesan convention, or to entitle them to vote 
for a Bishop : and that the general canon of 1804 superseded 
the similar canon of the diocese, passed in 1802. Next, that 
the canon did not, and could not interfere with any state law, 
which regulated the right to the temporalities of a church or 
parish, and defined what should be a settlement for that pur- 
pose. Now, at that time, the constitution of the diocese of 
New- York directed, that the convention should be composed 
of the officiating ministers, being regularly admitted and set- 
tled in some church within the state, which was in union with 
the convention. (Article 3, Cons. 1796.) By the act of the 
legislature, then and now in force, the wardens and vestrymen 
constituted under the act, were to call and induct a minister. 
And upon an application to the convention, the new church 
having been duly organized under the statutes, and nothing 
objectionable appearing, was admitted into the convention. 1 

1 The first instance I find recorded, (but it is clear there were others 
before.) is in 1796. [Journal of that year.) Two instances of the re- 
jection of such an application are to be founa previously, one in 1793, 
another in 1794. 



AND THE GENERAL CONVENTION. 125 

And this, as I understand the ease, was precisely the po- 
sition of Maryland, under the vestry act and the constitution 
of that Church ; and of South Carolina, under the statute and 
constitution in force in 1807, when the proceedings before 
stated took place. This, I believe, is their position now. 

It is this matter which the modification of the canon 
in 1808 meets. The institution shall not be necessary where 
it interferes with the laws or usages of a Church in a particular 
diocese. The constitutions of Maryland, New- York, and South 
Carolina, prescribe the qualifications of clerical members of a 
convention. They admit those legally settled in a parish, 
under a law of the legislature. They do not by law or usage 
require institution; and the General Convention dispenses in 
such case, with the requisition. 

But all this does not touch or impeach the power of the 
General Convention to have passed, or now to pass, the canon 
of 1804 ; or now to abrogate the qualification of 1808. I 
have added in the note some particulars which will tend to 
assist the judgment upon this point. 1 All that is now con- 

1 In Connecticut, an office of induction was directed to be prepared 
by the convention of 1799. In June, 1804, the office, as agreed upon 
by the bishop and clergy in convocation, was adopted. On the same 
day it was resolved, that no clergyman who shall hereafter be settled 
in this diocese shall be entitled to a seat in the state convention, until 
he produce a certificate of the Bishop, that he has been regularly in- 
ducted into some parish, agreeable to the office of induction adopted 
by this convention. This was before the session of the General Con- 
vention, when the canon of 1804 was passed. That session was in 
September of that year. I do not find any further action upon this sub- 
ject until 1826, when a canon, (the 14th.) was reported, requiring all 
clergymen who had been settled within a certain period, and all who 
should be thereafter settled, to be instituted according to the form set 
forth by the General Convention. Another canon provided for the case 
of those clergymen who had been settled for more than a year ; dis- 
pensing in their case with the institution. 

A substitute was offered for these proposed canons, declaring that 
the 29th and 30th canons of the General Convention, relating to the 
institution office, shall be hereafter considered as obligatory in this 
9 



126 CONSTITUTION OF THE CHURCH 

sidered is the power of the Greneral Convention in the matter. 
Under the 30th canon, relating to the election and institution 

diocese, any former usages or customs to the contrary notwithstanding. 
The whole subject was referred to a committee, and I do not find any 
further action upon it. 

In New- Jersey, by the constitution of 1811, the members of the con- 
vention are to be, among others, " every priest or presbyter who has 
been duly instituted rector of any church in this diocese. ' ; It appears 
from the Journals of 1808 and 1810, that letters of institution were 
issued by the standing committee, there being no Bishop. 

A striking confirmation of the distinction taken in the New-York 
resolution of 1806, is to be found in a proceeding in Maryland in 1844, 
although applied to the convention of the diocese. In the report of the 
minority in the case of Christ Church, Hagerstown, it is said — " it was 
suggested before the committee that, the various acts of Assembly 
merely prescribe rules by which civil rights are to be acquired and re- 
gulated, but have no operation or influence of themselves in the deci- 
sion, whether parties who have complied with these legal requisitions 
shall or shall not be adopted into union with the convention. It is as- 
serted, that whether or not a new congregation shall be received as a 
member of this convention, is wholly independent of any civil law, but 
depends exclusively upon the canons of the Church, or upon the discre- 
tion of the body. In the general and abstract, the undersigned are not 
disposed to dissent from these doctrines. 7 ' 

I will close this note with a quotation from the canon of the Scottish 
Church, which illustrates the principle of the resolution of New-York: 
"Whereas it has never been the practice of this Church, nor the wish 
of her Bishops, to interfere, directly or indirectly, with the funds or 
temporalities of her congregations; it is therefore fully acknowledged 
that the right of presentation to any chapel within her pale, is vested 
in those who are appointed to manage its concerns, whether known by 
the title of trustees, church- wardens, vestrymen, &c, and who by virtue 
of their office, procure the means of the minister's support ; yet to pre- 
serve the ancient and regular discipline of an Episcopal community, it 
is hereby enacted that no presbyter shall take upon himself the pastoral 
charge of any congregation to which he may be presented, before the 
deed of presentation be duly accepted by the Bishop." The form of 
the institution is annexed to the canons. It recites that a presentation 

has been made by the church-wardens, &c, in favor of , to the 

church of- . That the Bishop has sustained the same, and does 

therefore institute and appoint the said , to be pastor or minister 

of the said congregation, to perform the duties, &c. (Canon 10, Church 
of Scotland, apud Bums, vol. 4, p. 694.) 



AND THE GENERAL CONVENTION. 127 

of ministers, I have entered into other bearings of the subject 
©f much consequence, and which Dr. Hawks has made the 
subject of an able and elaborate comment. 

The principles which I have supposed to prevail respecting 
the power of the Greneral Convention, and the clear reasoning 
and high authority of the resolution of New- York in 1806, lead 
to the conclusion that the Greneral Convention possesses the 
power to prescribe institution as a qualification of the clerical 
members of a diocesan convention. 

I enter not into any question respecting the expediency of 
such a provision, as to which it may deserve remark, that as 
far as I can ascertain, New-Jersey is the only diocese in the 
Union in which institution is made a necessary qualification 
of a delegate. 

And if the right to pass such a canon as that of 1804, is 
conceded or established, it will be difficult to find a subject of 
Church discipline not within the province of the G-eneral Con- 
vention. I submit, (with much deference, upon a point almost 
untouched,) that upon every question of jurisdiction, the in- 
quiry is not, whether the power has been conferred, but whe- 
ther it has been denied or restricted. 

I have now presented some views respecting the powers of 
the Greneral Convention, and some examples to explain and 
enforce them. Others will arise in the course of the discus- 
sion of the separate articles of the -constitution, to which I 
shall now proceed- 



128 



CONSTITUTION OF THE CHURCH 



TITLE II, 

THE ARTICLES OF THE CONSTITUTION. 



Article I. 
(In force 1848.) 
There shall be a General 
Convention of the Protestant 
Episcopal Church in the Uni- 
ted States of America at such 
time in every third year, and 
in such place as shall be de- 
termined by the Convention ; 
and in case there shall be an 
epidemic disease, or any other 
good cause to render it neces- 
sary to alter the place fixed 



Article I. 
(1789.) 
There shall be a General 
Convention of the Protestant 
Episcopal Church in the Uni- 
ted States of America on the 
second Tuesday of September, 
in the year of our Lord, 1792, 
and on the 2d Tuesday of 
September in every third year 
afterwards in such place as 
shall be determined byj the 
convention; and special meet- 



on for any such meeting of ings may be called at other 



the Convention, the presiding 
Bishop shall have it in his 
power to appoint another con- 
venient place (as near as pos- 
sible to the place so fixed on) 
for the holding of such Con- 
vention. ($ 1.) 

Special meetings may be 
called at any other times in 
the manner hereafter to be pro- 
vided for. 2.) 

This Church, in a major- debate shall be allowed, 
ity of the Dioceses, which 
shall have adopted this con- 



times in the manner hereafter 
to be provided for ; and this 
Church in a majority of the 
States which shall have adopt- 
ed this constitution, shall be 
represented before they shall 
proceed to business, except that 
the representation from two 
States shall be sufficient to 
adjourn ; and in all business 



AND THE GENERAL CONVENTION. 129 

stitution, shall be represented 
before they shall proceed to 
business ; except that the re- 
presentation from two Dioceses 
shall be sufficient to adjourn; 
and in all business of the con- 
vention freedom of debate shall 
be allowed. ($ 3.) 

The changes iti the Article will appear from the portions 
italicised. In the convention of 1823 it was put nearly in 
its present form ; in 1838, the term " States " was changed 
to " Dioceses*" 



$ 1. In a preceding part of this work, I have Of Diocesan, 

sought to establish the proposition that the Gren- 

an t d National 
eral Convention was the national or provincial 0ouNCILS 

council of the Church of the United States, con- 
stituted by a body competent so to establish it — essential for 
attaining: the objects of the constitution and of its framers — 
indispensable to the unity and perfection of an Episcopal 
Church, and necessarily endued with paramount power, ex- 
cept where it had been expressly restricted. A reference was 
made to this portion of the treatise for authorities to sustain 
some of the positions there taken, especially as to the re- 
semblances and differences between the ancient councils and 
our convention. I proceed to notice some material elements 
of the organization of the former. 

It is stated by learned writers that provincial councils 
were not held prior to the middle of the second century, and 
then first in the east. Now previous to that time the regula- 
tion of the Church and government of the clergy vested in the 
bishops for their respective dioceses, or as they were then 
termed Paroscheses. It is also stated that at first the clergy 
formed the senate or council of advice of the bishop. This 



130 CONSTITUTION OF THE CHURCH 

body consisted of the whole clergy ; and as in early ages they 
surrounded the bishop and dwelt with him, and were deputed 
for spiritual duties where there was need, the presence of all 
was readily obtained. 1 

But as parishes were erected^ and the clergy became 
located in and confined to them, the attendance of all must 
have been difficult, and sometimes impossible. In this man- 
ner may we easily account for what is the undoubted fact r 
that the cathedral chapter, that is the clergy who remained 
and officiated at the bishop's residence, became the substitute 
of the clergy at large, and formed the bishop's council. Here 
was observed the principle of representation. 2 

1 Van Espen, in his chapter upon diocesan or episcopal synods, 
states their origin and office thus : " In the first ages of the Church the 
bishops were in the habit of convening their clergy whenever matters 
of importance occurred for deliberation. This was apparent from the 
epistles of Cyprian and other fathers. In the course of time these 
conventions came to be held twice a year, and when the provincial 
councils were fixed to be held annually, the episcopal synods were 
regulated in the like manner. 

" Besides those who had the- cure of souls, the members of these 
synods were ascertained not only by the provisions of canons, but by 
the varying customs of places." He then proceeds to state the mode 
of opening and conducting the synods. This conforms so closely to 
the precedent given in the Introduction to Spelmun's Concilia, that I 
cannot but consider the last to be meant of a diocesan synod. It is 
observable that some of the laity were admitted at the opening of the 
meeting, but after certain prayers and ceremonies, they were excluded. 

The offices of these Conventions are stated to be the correction 
and reformation of excesses and manners, especially of the clergy; in 
earlier times the determination of complaints and disputes between 
clergy and laity; and that the decrees of councils, general or provincial,, 
should be more easily executed, and adapted to the particular diocese; 
in some articles. 

a In the supplement to Van Espen's work (Tome 2, Tit. 8, ch. 1,) 
he says, — "It was observed in the text, that in the course of time, the 1 
cathedral chapter gradually came to be considered as the senate of the 
Church, and to represent the whole body of the clergy; so that what 
was at first done with the consent and advice of the clergy, began to 
be transacted with the advice of the chapter only, without regard to 



AND THE GENERAL CONVENTION. 131 

We may go further. It is clearly proven by records of 
councils and comments of the learned, that these cathedral 
chapters were represented in provincial councils. The strong 
language of Yan Espen deserves great attention. He speaks 
of some clergy as entitled de jure as well de comuetudine. 
Now it is not an unreasonable conjecture, that the bishops 
would wish to bring to the councils some of their own wise 
and learned assessors ; and thus, perhaps, what only began in 
convenience ripened by usage into law. Here we have again 
a representation of the whole clergy of a diocese ; first in its 
chapter, next in the procurators of that chapter in the provin- 
cial assemblies. 1 

My inquiries do not enable me to point out a record of any 
canons or regulations of a bishop's council in any age. Yet it 
is admitted that some were adopted, and covered certain sub- 
jects of government. 5 

the rest of the clergy. This power seems to have devolved upon the 
chapter in the tenth or eleventh century, about the time when the elec- 
tion of Bishops came to be transferred to the canons of cathedrals, to 
the exclusion of the other clergy." He then urges the advantages of 
an annual meeting of the "lergy,' or a body of them, to discuss the af- 
fairs of the Church for the remedy of abuses, and the welfare of souls. 
See further, Juris. Ecd. Un. Pars. 1 Tit. 8, ch. 1. 

1 See post. 

9 In the tract of Van Espen De Synodis partialaribus (apud Tractatus 
Historico Canonicus, Pars. IX. § 4, vol. ii p. 181.) he says— u It is un- 
questionable that synods, not only oecumenical or general, but also 
national, or provincial, or diocesan, possess the authority of establish- 
ing those things which they judge to be for the benefit of the Church 
or people ; and their regulations and decrees (ordinationes et statuta,) 
have the force of laws through the district which belongs to the synod, 
national, provincial, or diocesan. Wherefore that must be held for law 
which the respective synods, provincial, diocesan, or national have de- 
creed." (See also Jur. Eccl. Un. Pars. 1 ch. 2, 10.) Suarez briefly 
observes, (De Le gibus, Lib. 4, ch. 6, 8.) It is in the second place to 
be observed of those minor councils of which the authority is estab- 
lished, that they may make laws accommodated and proportioned to 
their jurisdiction, as well in regard to territory as to the subject matter 
oi such laws. I deduce this from the common doctrine of the canonists. 



132 CONSTITUTION OF THE CHURCH 

It will be easily understood however, that as soon as pro- 
vincial councils became common, the laws of such a synod 
would be few and limited. The Bishop himself was present 
and assisting at the former ; a portion of his own council was, 
it is presumed, also present. The Metropolitan added his 
authority and influence. The laws and canons were no doubt 
more maturely framed, were of uniform and general operation, 
and would supersede the institutions of any separate diocese. 

The duties and offices of the provincial councils are per- 
spicuously set forth in a canon of the 4th council of Lateran. 
"According to the ordinance made of old by the holy fathers, 
the metropolitans together with their suffragans shall not 

He then cites many authors. "These councils are of a triple order; 
such as are called national, in which are assembled, not only the 
bishops, but the archbishops, of every nation under one primate or pa- 
triarch. Others are provincial, of one metropolis, in which the suffragan 
bishops are convened with their archbishops ; and lastly, others are 
synodal, not usually called councils but synods, in which are assembled 
the abbots and priests with cure (Parochi.) with their Bishops." The 
author proceeds to state that these cannot bind the whole Church for 
want of jurisdiction, unless the Pope ratified the laws, nor could they 
act in the more serious matters, but their laws were binding when 
conformable to their jurisdiction. 

By the 31st canon of the Scottish Church, a diocesan synod is to be 
holden annually, and shall consist of the bishop, the dean, and such 
clergymen as shall have been instituted to their charges, and shall be 
attended by all the clergy of the diocese, unless hindered by some suf- 
ficient cause. A report is to be made of the state of the congregation, 
by every incumbent. ' ; Every diocesan synod may also suggest rules 
for the regulation of ecclesiastical affairs, which if approved by the 
Bishop, and not inconsistent with the constitution and canons of the 
Church, shall have the force of laws within the diocese." (Burns, vol. 
iv. p. 781.) 

The 32d canon regulates general synods. 

Bishop Kennet, says — "Before the reformation every bishop had as 
full authority for a synod in his diocese, as the archbishop had for a 
synod in his province. And the diocesan constitutions, if not contrary 
to any more authentic declarations or general canons of the Church, 
were as obligatory within the smaller, as the provincial were within 
the larger district." (Ecclesias. Synods, &c, p. 180, Ed. 1701.) 



AND THE GENERAL CONVENTION. 133 

omit to hold provincial councils in every year ; in which is to 
be considered, the correction of offences and reformation of 
morals, especially of the clergy, as well as all canonical laws, 
and chiefly for enforcing {relegandi) those things which are 
ordained in the general council, so that they may be better 
observed, by inflicting a just punishment upon transgressors." 
(4th Council of Lateran, cap. 6, apud Binnii. Concilia, Tome 
3, p. 1452. a. d. 1215.) 1 

A very important part of their office was the hearing and 
deciding the causes and offences of the clergy as well as of 
the laity in spiritual matters. It is needless to enter upon the 
question so abundantly discussed by the canonists, whether 
the Church could regulate the temporal affairs of its members, 
or the state could control in spiritual matters, or what related 
to them. A judicial power to a certain extent has for ever 
been exercised in the Church, and must be possessed. In 
early ages the ultimate authority and right of judgment was 
vested in these councils. 2 

1 Van Espen also (De Synndis Provincialibus^VsLrs. 1, Tit. 20. cap. 2, 
Tome 1, 117.) enumerates their chief officers thus — "to inquire 
whether any bishop had acted according to law in repelling any one 
from the Holy Communion, to hear and determine all accusations of 
clergy or laity against the bishops, and indeed all criminal matters 
where the punishment might be deposition — to correct all vices and 
abuses, so that the conduct of all might be recalled to the discipline 
established by the sacred canons. " 

Again in speaking of the authority of the monarch in relation to 
the decrees of these councils, he says — " that the execution of synodal 
decrees is difficult and inefficient, unless the authority of the king or 
prince was added to them, is proven by experience. Hence whatever 
is ordained and decreed in the synod is presented to the king for his 
sanction." He quotes the precedent of the canons of the council of 
Zuronensis, (813.) presented to Charles the Good, " that he might order 
them to be observed throughout the province." 

2 In Fitzherbert's Natura Brevium, 269, is the form of a writ in the 
case of Sawbee, condemned for heresy. It recites that the venerable 
Thomas, Archbishop of Canterbury, Primate of all England, kc , with 
the advice and consent in Council, of his suffragan brethren, as well 
as of all the clergy of the province, in his Provincial Council assembled, 



134 CONSTITUTION OF THE CHURCH 

These assemblies were, of absolute right and 

Members. m 

originally, composed only of the Archbishop or Me- 
tropolitan, with all the Bishops of his province. But other 
members were in the course of time admitted by custom, and 
it would seem that some obtained a right to attend. Among 
these were the cathedral chapters and colleges, or representa- 
tives from them, the abbots and others. It would appear how- 
ever that in general, the office of such members was merely 
advisory, and that they did not possess a vote. 

The Metropolitan was at the head of these councils ; but 
ordinarily his power was only that of a summoning and pre- 
siding officer. The Bishops in council could over-rule him, 
and he could not dissolve the meeting without their consent. 
If in particular provinces a more extended authority prevailed, 
it is to be attributed to custom, or to some express excep- 
tionary regulation. 1 The 2d canon of the Church of Scotland, 

after duly observing all legal requirements, did pronounce a definitive 
sentence upon, &c. &c. See also Van Espen, Sup. p. 1, Tit. 20, cap. 2. 

1 Van Espen, Tit. de Syn. Prov., Tit. 20, cap. 1. Johnson's Vade 
Mecum, Part 2, pp. 80 — 81. Beveridge De Metropolitanis. The rights 
of Metropolitans arose from custom and circumstances, not from any 
apostolic regulation. Van Espen, Supplement, Tit. 19. Stillingfleet, 
Ecc. Cases, p. 255. 

In addition to the metropolitan and comprovincial Bishops, essential 
members of the Council, a number of the other clergy are found to have 
had a place in these assemblies in almost every age. Thus there were 
deputies of the cathedral chapters, abbots of various orders, deputies 
of collegiate churches, and others, sometimes present. It is said, in- 
deed, that these had but an advisory office (vocem duntaxat consultivam,) 
the Bishops and Metropolitan deciding all matters. The learned Van 
Espen (Tit. 20, cap. 16.) remarks : u Qui vero prceter Episcopos ad Syno- 
dum Provincialem vocandi sint, non e jure scripto duntaxat, sed vel maxime 
a consuetudine desumi debet." 

A few examples may be useful. At the Council held at Rome, 
(a. d. 904,) the preamble to its acts, after stating the presence of the 
Pope, of numerous Bishops and a large number of presbyters by name, 
adds : Astantibus Diaconis, videlicet, Benedicto Archdiacono, item Bon- 
filio Diacono, seu reliquis astantibus. (Binnii Concil., torn. 3, p. 1065.) 
So in the Council of Rome, 1080, there were present, M Archbishops 



AND THE GENERAL CONVENTION. 135 

appears to express and comprise the general attributes of his 
office. " Before the distinction of Archbishops was introduced 

and Bishops of different cities, as well as abbots and a great number of 
clergy of different orders, and of the laity. (Ibid. p. 1287.) 

At the Council of Eufurt, in 932, were present two Archbishops, 
many Bishops who are named, necnon et Abbatibus, aliisque sacri ordinis 
viris. (Ibid. 1056.) 

In the year 888, in the reign of Amulphus, a Council was held at 
Magentium, at which were present three Archbishops with their suf- 
fragans, cceterorum non modica rnultitudine abbatum scilicet, et aliorum sa- 
cerdotum. (Ibid. 1025.) 

With regard to England, the character of the Councils in Saxon 
times has been before largely discussed. (Introduction.) The subsequent 
Councils were chiefly those of the province of Canterbury, generally 
adopted in that of York. They are to be found in Lynwood, and in 
Johnson's Laws and Institutions of England. The constitutions of Simon 
Mepham, Archbishop of Canterbury, made in London a. d. 1328, are 
made by the Archbishop by the authority of the present Council, with 
the consent fratrumsuffraganeorum. (AppendixtoLYT$woov,ip.4:l.) The 
Council under John of Stratford. (1342.) was attended by all the pro- 
vincial Bishops in person, or by procurators. (Ibid. p. 43.) The pre- 
amble to the constitutions of Thomas of Arundel, is : De consilio et as- 
sensu omnium suffraganeorum nostrorum et alienorum Prcelatorum in hac 
cleri convocatione prcesentium et Procuratorum absentium, atque ad instan- 
tern petitionem Procuratorum totius cleri nostrce Provincial." 11 (Ibid. p. 65.) 

The most full and decisive precedent which I have found, is that of 
the Council of London, in 1309. It is stated by Sir Henry Spelman, in 
his Concilia, p. 458. 

Concilium provinciate celebratum in Ecclesid S. Pauli, Londoniarum, 
die Lunae proximo post Festum S. Edmundi Regis et Martyris, Anno Do- 
mini MCCC. nono, per Dominum Robertum de Wynchelse, Cautuarien- 
sem Archiepiscopum, convenientibus tunc ibidem, ad citationem ejusdem 
Archiepiscopi, Dominis, R. London, H. Wynton, S. Sarum, J. Lincoln, 
J. Cicester, J. Norwycense, W. Exon, T. Roffensi, W. Wygorn, J. Ba- 
thon, et Wellen. D. Meneven, L. Assaven, A. Bangorensi, Episcopis ; 
ceteris Episcopis Suffraganeis Cantuariensis Ecclesice, se excusantibus , 
propter infirmitatem et debilitatem corporum : Necnon Decanis et Procura- 
toribus Capitulorum Cathedralium Ecclesiarum, Prcepositis, Archipresby- 
teris, Archidiaconis, et Procuratoribus Cleri cujuslibet diocesis ; Abbatibus, 
Prioribus, ac Procuratoribus Collegiorum, prout in Certijicatorio London. 
Episcopi inferius descripto jit mentio. 

The order of celebrating a council, taken by Isidore Mercatore from 
the 4th Council of Toledo, is to be found in Mansi's Concilia, Tome i. 
p« lO.j ^It is not a general regulation, but governed, probably, the 



136 CONSTITUTION OF THE CHURCH 

into Scotland, one of the Bishops had a precedency under the 
title of Primus Scotorum Episcopus, and the Episcopal col- 
councils of Spain." After the entrance and seating of all the bishops, 
those presbyters are called, who for some sufficient reason are permitted 
to enter. 1 After these enter such approved deacons as the regulation 
permits to be present. Then such of the laity as by selection deserve 
to attend. 2 

The first two days were by this order of the Spanish councils de- 
voted mainly to religious services, and exhortations. On the third day, 
all who had been present on the previous days lor spiritual instruc- 
tion were excluded, leaving in the council certain presbyters whom the 
Metropolitan had approved as so to be honored. The other presbyters, 
deacons, laics, who remained without, were called, if they had any 
matter to exhibit to the council. And on the day of the dissolution of 
the council, all the canons which in the Sacred Synod had been adopt- 
ed were read in public before the whole Church. 

A very learned author, who has entered upon the subject of 
the English Councils at great length, states broadly, that "it is the 
particular privilege of English priests to have a right to sit as consti- 
tuent members in Provincial Synods, and are owned in all conclusive 
acts to have a negative on the bishops." (Johnson, Vade Mecv,m, 
part i. cap. 16.) This is stronger, as coming from a writer who sums 
up the general rule of the Church thus. After observing upon the 
composition of the first council at Jerusalem, he says : : ' In a word, 
this instance is sufficient to prove that the priests are capable of belong- 
ing to synods as constituent members; but which of that order shall 
be chosen to sit there, must be decided either by the pleasure of the 
bishops from time to time, or by the custom of the Church, introduced 
by the, express and tacit consent of the bishops of each province or 
country', for several ages past." {Ibid, part ii.p. 53.) 

In another part of the same work, he says: " They who allow the 
least to them, (the lower clergy) acknowledge that they were by de- 
grees received into the Provincial Synod, which before consisted only 
of bishops and abbots, and were permitted to give their votes in all 
things that concerned the doctrine, discipline, and government of the 

1 Vocentur deinde presbyteri quos causa probavcrit introire. The gloss upon these words 
is — The fathers of the Spanish Church did not by this regulation permit these, as presbyters 
or ministers, simply to assist at a council, but only certain selected presbyters of approved life 
and doctrine. Thus in the council of Eliberitamus, we find, besides the bishops, thirty-six 
presbyters to be assembled. But in subsequent Spanish councils, they were not so readily al- 
lowed a seat, unless they came in the place of absent bishops. And this we find to have been 
more strictly observed in the (Ecumenical Councils, where there was no place assigned for them. 

That is, (says the same authority) such deacons as the bishops deemed worthy of taking a 
part in the sacred Assembly. In subsequent Spanish councils they were not admitted. 

2 Deinde ingrediantur tt Laid qui electione concilii {concilio in margin) interesse meruerint. 



AND THE GENERAL CONVENTION. 137 

lege having for a century past adopted the old form, it is 
hereby decreed, that the Bishops shall without respect either 
to seniority of consecration or precedency of dioceses, choose 
a Primus by a majority of voices, who shall have no other pri- 
vileges among the Bishops but the right of convocating and pre- 
siding, and that expressly under the following restrictions, &c." 

These Councils were, by one of the apostolical canons, as 
they are termed, to be held once every year ; and in pursuance 
of that direction Episcopal Synods were also to be held yearly. 

The provincial councils ceased to be held in the Latin 
Church when the supreme power of judging causes was taken 

Church ; and have been for near three hundred years an essential part 
of the convocation. At first they sat in one room with the Lords 
Bishops, and when any affair was in agitation which did particu- 
larly concern them, they retired to some place by themselves, and re- 
ported their resolution to the Lords, by one or more eminent members; 
but Bishop Kennet doth allow, that by the beginning of the 15th 
century, they began to be a distinct house, and to have a settled Pro- 
locutor regularly chosen at the beginning of the session, the first of 
whom, saith he, was the famous Lynwood." (Ibid. p. 101. Ed. 1731.) 
Bishop Rennet's work upon the Ecclesiastical Synods and English 
Convocations is devoted mainly to a confutation of Mr. Atterbury, and 
to the establishment of the proposition that the superior clergy did not, 
for a very long period, form constituent members of the Provincial 
Synods of England. He insists upon the distinction between a Church 
Synod, properly so called, and a Parliamentary Convention. In the 
latter, the clergymen were in attendance as members, or by proctors, in 
order to tax themselves for aids and supplies to the crown. But for 
seven or eight reigns after the Conquest, he states, that the inferior 
clergy did not make an authoritative part of proper Ecclesiastical 
Synods, nor was their attendance necessarily required there, (p. 171.) 
Their right to attend and vote grew up by custom and the call of the 
archbishops. He states that the first instance in which they were sum- 
moned to attend a Provincial Synod was in 1283, (p. 136.) When the 
clergy did return select proctors of their own body, it was at first but 
to the same purpose of consenting to taxes, not to constitutions and 
canons. All the proper ecclesiastical acts were reserved, as before, to 
the archbishops and bishops as governors of the Church, till by slow 
degrees the inferior clergy were admitted to a share in the spiritual 
legislature, which we desire they may still preserve.'' (p. 146.) 



138 CONSTITUTION OF THE CHURCH 

from them. The learned Van Espen traces their decline to 
the promulgation of the false decretals, and the usurpations of 
the Popes by the system of appeals and other encroach- 
ments. 

And there is a very powerful paper to be found among the 
documents published under the auspices of Leopold, Grand 
Duke of Tuscany, being a history of the assembly of the arch- 
bishops and bishops of Tuscany, held in 1787. It is written 
by a monk, Francis Barkovich. In speaking of the decretals 
he says — " The principal doctrines inculcated in this fraudu- 
lent collection are, that the Pope is Bishop of all Christendom ; 
that all causes of importance ought to be brought by appeal 
before him ; that causes relating to bishops belong exclusively 
to the Pope ; that he ought to convoke and preside in all 
general councils ; that no council, whether general or particu- 
lar, is binding unless approved of by him ; that he has 
authority to allow bishops to give up the churches to which 
they have been appointed, for the purpose of being appointed 
to a richer and more illustrious see ; and that appeals to the 
See of Rome were usual before the Council of Sardica" l 



1 Life of Cardinal Scipio De Ricci, (London. 1829, vol. i. p. 287.) 
The work is full of striking papers against the powers of the Romish 
See, and of wise projects or improvements which, bat for the reaction 
produced by the madness of the French Revolution, might have led to 
a sobered reformation in Italy. Among other documents is one pre- 
sented to the Senate of Venice in 1769, and another called a defence 
of the Counsellor Joseph Raffaele, March 1770, from which I cannot 
refrain from quoting the following passage : " Finally Gregory the 
Twelfth mounted the papal throne, and reduced into a regular system 
the whole of that hitherto unshapely mass of privileges and exemptions 
which had been slowly constructed, partly on the ignorance and super- 
stition of the people, and partly on the weakness and cowardice of 
governments. The two Councils of Lateran sanctioned this gigantic 
system by the adherence of deputies from the whole Church, who they 
said had been assembled in the name and by the authority of the Holy 
Spirit. From that period, whoever ventured to attack either the per- 
sons or the property of the clergy, was threatened with the spiritual 



AND THE GENERAL CONVENTION. 139 

The diocesan synods fell into disuse when the provincial 
councils were abandoned ; ! and we cannot but be struck with 
the restitution in our own Church of that primitive order and 
system which the usurpations of the Popes broke down in the 
Latin, and its connection with the state has impaired in the 
English Church. 



To return to the first article of the constitution. 

The matter of Special Meetings is regulated by 

F a 6 J §2 Special 

Special Convention is in the Bishops. This right ^ EETINGg . 
the 49th canon of 1832. The right of calling a 
shall be exercised by the presiding Bishop, or in case of his 
death, by the bishop, who according to the rules of the House 
of Bishops, is to preside at the next General Convention, — - 
provided that the summons shall be with the consent or on the 
requisition of a majority of the Bishops, expressed to him in 
writing. 

The place of holding a Special Convention shall be that 
fixed on by the preceding General Convention for the meet- 
ing of the next General Convention, unless circumstances 
shall render a meeting at such place unfit ; in which case 
the Presiding Bishop shall appoint some other place. 

The Deputies elected to the preceding General Convention 
shall be deputies to such Special Convention, unless in those 
cases in which other deputies shall be chosen in the mean 
time by any of the Diocesan Conventions, and then such 
other deputies shall represent in the Special Convention the 
Church of the diocese in which they were chosen. 

thunder of the Church, and its awful consequences both in this world 
and the next. The energies and intelligence of mankind were thus 
completely paralysed; and society, in the very period of its infancy, 
fell into the weakness and decrepitude of age. '-' — Life of De Ricci. vol. 
i. p. 274. 

1 Van Espen Juris. Eccl Un. He deplores the fact that both of 
these councils have been so long neglected. 



140 CONSTITUTION OF THE CHURCH 

There must be a representation of a majority 
of the dioceses which have adopted the constitu- 
tion, before the convention can act. But what constitutes 
such a representation is not clear. 

In the year 1844, a resolution was adopted referring it to 
the committee on canon law to consider and report to the 
next Convention, what alterations, if any, may be expedient 
in Articles I. and II. of the Constitution for the purposes of 
defining more exactly what constitutes a quorum of this 
house, and what a representation of both the clergy and laity 
in this house ; and further what constitutes a majority of 
this house voting by dioceses and orders." {Journal 1844, 
p. 105.) 

In the Convention of 1847, the committee reported " that 
a majority of the dioceses must be represented in order to 
constitute a quorum ; and that each diocese should be con- 
sidered sufficiently represented for that purpose, if one cleri- 
cal and one lay deputy be present in convention, (Journals 
1847, p. 107.) 

The report was laid on the table, and not acted upon during 
that convention. It will be perceived that the committee 
omits to answer the second question. As to the latter part of 
the report, viz. : that a diocese is represented if one clerical 
and one lay deputy is present, it may be noticed, that under 
the second clause of the 2d article of the constitution, in cer- 
tain cases (and among them a neglect to attend) one deputy, 
clerical or lay, will represent a diocese. 1 

Does not this clause apply to the question of a quorum 
m cases within it ? There must be a majority of dioceses 
which have adopted the constitution represented. But what 
is a representation ? As a clause of the second article is ma- 

1 I have seen the MSS. report of Bishop vVhittingham, and the printed 
report of Bishop Hopkins. In both, the phrase is, or one lay deputy; 
in the disjunctive. This was no doubt a clerical error, and in a note of 
the Bishop of Vermont, he so treats it. 



AND THE GENERAL CONVENTION. 



141 



terial upon this point, some observations are submitted under 
it. See § 3, post. Art. II. 



Article II. 

(In force 1848.) 
The Church in each dio- 
cese shall be entitled to a re- 
presentation of both the clergy 
and laity, which representa- 
tion shall consist of one or 



Article II. 
(1789.) 
The Church in each state 
shall be entitled to a repre- 
sentation of both the clergy 
and the laity, which represen- 
tation shall consist of one or 



more deputies not exceeding more deputies, not exceeding 
four of each order, chosen by four of each order, chosen by 



the convention of the dioceses. 

In all questions when re- 
quired by the clerical and lay 
representation from any dio- 
cese, each order shall have one 
vote ; and the majority of suf- 
frages by dioceses, shall be 
conclusive in each order, pro- 
vided, such majority compre- 
hend a majority of the dioceses 
represented in that order. The 
concurrence of both orders 
shall be necessary to constitute 
a vote of the convention. 

If the convention of any 
diocese should neglect or de- 



the convention of the state ; 
and in all questions when re- 
quired by the clerical or lay 
representation from any state, 
each order shall have one 
vote ; and the majority of suf- 
frages by states shall be con- 
clusive in each order, provided 
such majority comprehend a 
majority of the states repre- 
sented in that order; the con- 
currence of both orders shall 
be necessary to constitute a 
vote of the convention. 

If the convention of any 
state should neglect or decline 



cline to appoint clerical depu- to appoint clerical deputies, or 

ties, or if they should neglect if they should neglect or de- 

or decline to appoint lay de- cline to appoint lay deputies, 

puties, or if any of those of or if any of those of either 

either order appointed, should order appointed, should neglect 

neglect to attend, or be pre- to attend or be prevented by 



242 



CONSTITUTION OF THE CHURCH 



vented by sickness 01 any 
other accident, such diocese 
shall nevertheless be consider- 
ed as duly represented by such 
deputy or deputies as may at- 
tend, whether lay or clerical. 
And if through the neglect 
of the convention of any of the 
Churches which shall have 
adopted, or may hereafter 
adopt this constitution, no de- 
puties, either lay or clerical, 
shall attend at any General 
Convention, the Church in 
such diocese shall nevertheless 
be bound by the acts of such 
convention. 



sickness, or any other accident, 
such state shall nevertheless 
be considered as duly repre- 
sented by such deputy or de- 
puties as may attend, w T hether 
lay or clerical. 

And if through the neglect 
of the convention of any of the 
Churches which shall have 
adopted, or may hereafter 
adopt this constitution, no de- 
puties, either lay or clerical, 
shall attend at any General 
Convention, the Church in 
such state shall nevertheless 
be bound by the acts of such 
convention. 



§ 1. Number. 



One deputy of each order as fully represents 
that order in his diocese as four, which latter num- 
ber cannot be exceeded. In the Convention of 1847, a ma- 
jority of the committee on the canon law, reported that three 
clerical and three lay delegates would be amply sufficient in- 
stead of four. {Journal 1847, p. 107.) 
The report was not acted upon. 

It will be observed that the representation is to 
§ 2. Body to ^ chosen by the convention of the diocese. In the 

CHOOSE. J 

year 1847, a question arose under this clause. A 
number of deputies had been returned not chosen directly by 
the conventions of the dioceses, but under a provision of the 
constitution or canons, which devolved the duty in certain 
cases upon the Bishops, &c. For example, in Connecticut, 
the 14th article of the constitution provides for the appoint- 
ment of delegates by the convention, and if a delegate declines, 



AND THE GENERAL CONTENTION. 143 

the Bishop may appoint a substitute. Under this clause, a 
delegate was sent appointed by the Bishop. The regulations 
of Ohio, Western New-York, and many other dioceses, are upon 
this principle. 

The committee on elections reported these cases specially. 
After various resolutions had been submitted and discussed, 
the following passed : — ■ 

" Resolved, as the sense of this House, that members ap- 
pointed by the authority of the diocesan conventions, are, 
according to the practice of the House of Clerical and Lay De- 
puties, fully entitled to their seats." 

This undoubtedly disposes of the question, so far as relates 
to the cases then before the convention, and those of a similar 
nature. Upon examining the list of the delegates specified in 
the report of the committee, it will be found that the cases 
were all of a vacancy caused by death or resignation of per- 
sons chosen by the convention, and whose places were sup- 
plied by the bishop or others, under a general provision of the 
law of the diocese, except in two instances. 

In the case of North Carolina, the substituted delegate 
was appointed under a resolution passed by the convention at 
the time it made the selection of deputies, and which resolu- 
tion authorized the Bishop to fill up any vacancy. There is no 
general provision upon the subject in the constitution or 
canons of that diocese. The case of the deputy from Alabama 
was the same. (See Journal, Alabama, 1847, p. 18.) 

Notwithstanding the generality of the language of the 
resolution above cited, it cannot, I presume, be supposed, that 
a general canon of a diocese would be valid, delegating the 
powers entirely and prospectively to a bishop or committee. 
Certainly the constitution contemplates an action by the dio- 
cesan convention for each General Convention ; that the repre- 
sentation is to be of the direct apppointment of the Convention. 
The necessity or great convenience of a case may well warrant 



144 CONSTITUTION OF THE CHURCH 

a delegation of power to fill a vacancy occurring when the 
convention is not sitting ; and the course of North Carolina 
seems the most regular. Still it may also well be that a 
general canon may govern such a contingency ; but a pros- 
pective general transfer of the right to choose representatives 
is scarcely consistent with the relation the diocesan convention 
is meant to bear to the General, nor with the just construction 
of the constitutional provision. 

And indeed this view is applicable, though not so strongly, 
to a delegation by a convention of authority to choose the de- 
puties in a particular case, for a particular convention. 

In the same convention of 1847 a resolution was referred 
to the committee on canons to alter the second article of the 
constitution, by inserting after the words " convention of the 
diocese," the words "or in such manner as the said conven- 
tion may prescribe, which choice shall not be delegated to any 
other person or persons." The committee did not report upon 
the matter at that convention. (Journal, 1847, p. 39.) 

The method of choosing delegates to the 

„ General Convention is left to the convention of 

Choosing. 

each diocese. The regulations are not very uni- 
form, although some points of resemblance are to be found in 
all. I select for an example the regulation in Wisconsin and 
New- York, and shall point out the material variances to be 
found in the rules of other dioceses. 

Article 8, Sec. 1. At every annual convention, four clerical 
and tour lay deputies shall be elected, by ballot, to represent 
this diocese in the General Convention of the Protestant Epis- 
copal Church in the United States of America. 

Sec. 2. The clerical deputies shall be presbyters canoni- 
cally connected with this diocese, and having parochial 
charges. 

Sec. 3. In case of a failure or neglect of the convention to 
elect deputies, those already in office shall continue until suc- 
cessors are chosen. 






AND THE GENERAL CONVENTION. U5 

Sec. 4. The convention shall also elect, by ballot, a like 
number of supplementary deputies of each order, to serve as 
deputies contingently. 

Sec. 5. It shall be the duty of the deputies elect to signify 
to the Bishop in writing, at least six weeks before the meeting 
of the General Convention, their acceptance of the appoint- 
ment, and intention to perform its duties; in default of 
which the bishop shall designate [by certificate in writing] so 
many from those of the supplementary deputies as shall be 
necessary to insure a full representation of the diocese ; and 
the persons so designated shall have all the power and au- 
thority of deputies duly elected by this convention. 

The ninth canon of New- York is as follows : 

Sec. 1. The Convention shall, at each regular annual 
meeting next preceding a stated meeting of the General Con- 
vention, elect, by the concurrent ballot of the clerical and 
lay members, four clergymen and four laymen, to act as 
deputies from this diocese to the General Convention. It 
shall also, in like manner, elect four clergymen and four 
laymen as provisional deputies, to act in the case hereinafter 
mentioned; which deputies and provisional deputies shall 
hold their respective stations until successors are appointed, 
and shall be deputies or provisional deputies for any General 
Convention which may be held during their continuance in 
office. 

Sec. 2. Should a vacancy occur by resignation, removal 
from the diocese, death, or otherwise, among the deputies or 
provisional deputies, between the stated times of election, 
the vacancy shall be supplied by any convention, during or 
prior to which such vacancy shall occur. 

Sec. 3. It shall be the duty of the deputies elect to sig- 
nify to the Bishop, at least two days before the meeting of 
the General Convention, their acceptance of the appointment 
and their intention to perform its duties ; in default of which 



146 CONSTITUTION OF THE CHURCH 

the Bishop shall designate from the list of provisional depu- 
ties so many as may be necessary to insure, as far as prac- 
ticable, a full representation of the diocese. And the Bishop 
shall in like manner designate from the same list of provi- 
sional deputies one or more, as the case may be, to supply 
any deficiency in the representation of this diocese which 
may in any way occur. And the person or persons so de- 
signated by the Bishop, being furnished with his certificate 
thereof, shall have all the power and authority of depu- 
ties duly elected by the convention. 

Sec. 4. In case of a vacancy in the Episcopate, or the 
inability of the Bishop to act, the power conferred upon the 
Bishop by this canon shall be exercised by the Standing 
Committee. 

One important difference in the method pursued in these 
two dioceses is this, — In Wisconsin, the vote by ballot is 
of the members clerical and lay collectively, a majority de- 
termining. The practice in New-York is for the orders to 
ballot separately, and a majority in each order is requisite. 
Even if it were doubtful whether this was enjoined by the 
language of the canon itself, yet it follows from the provision 
of the 12th canon, directing "that when an election is by 
ballot, a majority of the votes in each order shall be necessary 
to a valid election." 

In Wisconsin in 1847, the votes having been inadvertently 
taken by orders instead of by individuals, a resolution was 
passed declaring the election void, and the convention pro- 
ceeded to choose by a joint ballot. (Journal, p. 19.) This 
was the same year in which the Constitution was adopted. 

The phraseology of the canon of Missouri is, — " Shall 
elect by the concurrent ballot of the clerical and lay mem- 
bers." I am not aware, from an examination of the Journal, 
whether the balloting is individually, or by orders. 

In Ohio, the rule is the same as in Wisconsin and ex- 



AND THE GENERAL CONVENTION. 147 

pressed clearly. It is to be by a joint ballot of the clergy and 
laity, and a majority of votes shall be required for an election. 
(Article YIL, Const. 1847.) 

The canon (9 of 1847) of Illinois is exactly like that of 
Missouri, except in requiring the delegates to be communi- 
cants. But there is also a provision (Canon 13) precisely 
like that of the 12th canon of New- York before cited. 

In Louisiana the election is by a majority of the votes of 
the clergy and laity together. In case of a vacancy, by death 
or resignation, a substitute or substitutes may be appointed 
by the Bishop ; or if there be no Bishop, by the President of 
the Standing Committee. (Article VII. and IV., Constitution, 
1847.) 

I apprehend that the same rule prevails in Mississippi and 
in Florida. In the latter diocese, vacancies are supplied by 
the concurrent vote of the remaining clerical and lay depu- 
ties. (Canon 9, 1847.) This is also the regulation in 
Georgia. In South Carolina the provision of the 13th Article 
is, that at every annual Convention four presbyters and four 
laymen shall be chosen by ballot. By the 9th Article, the 
members are to deliberate and vote as one body, unless a 
separate vote of each order is called for in the manner pre- 
scribed — " and a majority of both orders shall be necessary 
for a decision." 

In the year 1847, these clauses received a practical con- 
struction. I should observe that the provision as to choosing 
members of the standing committee is the same nearly as 
that relating to delegates. 

The votes upon an election were directed to be taken by 
orders, and this was done both as to delegates and members 
of the standing committee. 

A question arose as to the interpretation of the 9th Article 
of the Constitution, and it was ruled, that " a majority " b there 
means " a majority in each order of the votes cast." 



149 CONSTITUTION OF THE CHTJECH 

Now a similar provision exists, I believe, in every diocese, 
for compelling a vote by orders; and if this is applicable to 
an election as to a vote upon a measure, then the vote in 
orders may be had even where a joint vote of individuals is 
allowed. 

In North Carolina, there is no direct enactment upon this 
subject. The 9th article of the constitution prescribes the 
mode of voting where no division is called for, and where it 
is. This provision is general as to all questions coming be- 
fore the convention. In the Journal of 1847, it is stated 
generally, that the convention proceeded to ballot for dele- 
gates ; and then a resolution was adopted, authorizing the 
Bishcn to fill any vacancy which might occur. 

In a number of dioceses, the direction to take the vote by 
orders is express. Thus in Connecticut, each order shall ap- 
point delegates by ballot, but the delegates thus appointed 
must be confirmed by the concurrent votes of both orders in 
Convention. 

It is submitted that the system prevailing in New- York, 
"Wisconsin and some other dioceses, of guarding as much as 
possible against a vacancy by choosing deputies and provi- 
sional deputies, best comports with the spirit of the Constitu- 
tion. The selection by a bishop or standing committee from 
these in cases of vacancy is a matter of expediency, and 
wholly unobjectionable. 

Again, it is considered that a right to choose by orders 
ought to be retained in the system. Whether we look upon 
the delegates as representing the diocese, as they truly do, or 
the Convention, the right to prevent an overwhelming vote of 
one order forcing upon the other an unacceptable representa- 
tive ought to exist. And a concurrence is necessary, because 
it is the diocese, and not the orders to be represented. With 
an amendment of this character, the provisions in Wisconsin 
appear both full and clear, and might be taken as a model to 
produce uniformity. 



AND THE GENERAL CONVENTION. 149 

In one instance the General Convention has limited the 
choice of lay delegates. By Canon VI. of 1838, no person 
who is a candidate for holy orders in the Church shall be 
permitted to accept from any diocesan convention an ap- 
pointment as a lay deputy to the House of Clerical and Lay 
Deputies. 

In the Constitution, as twice published by § 4 - Call FOa 
Bioren in the Journals, (p. 61 and p. 75,) the 

~ . . BY ORDERS.S 

requisition for a vote by orders may be made by 
the clerical or lay representation of, any diocese. In the 
other copies of the Constitution I have examined the word is 
and. The practice requires a united request. 

Upon such a requisition, the orders vote separately ; and 
instead of there being a vote of the members in qonvehtion, 
there is a vote of the orders, each order being considered as 
having one vote. A majority of the clerical members of a 
diocese settles of course the vote of that order Jbr the diocese ; 
and so of the lay votes. 

For example, if there is one clergyman only from a dio- 
cese, his vote is the vote of the order of that diocese. If two, 
and they differ, the diocese is divided, and the vote becomes 
in effect a negative. If more than two, a majority decides 
the vote of the diocese in the clerical order. 

But although the majority of the number of dioceses set- 
tles the vote of the order, it must be a majority of the dio- 
ceses represented. Thus if there are twenty-eight dioceses, all 
represented, fifteen must unite to carry a measure. If one of 
the dioceses is divided, still it is represented so as to make 
the fifteen necessary. Fourteen would not be sufficient. An 
instance to illustrate this occurred in the Convention of 1847. 
(See p. 89 of the Journal.) Twenty-four Dioceses had a 
representation of the laity ; 12 voted in the affirmative upon 
a resolution ; 10 in the negative — 2 were divided. Of course 
the resolution was lost in that order. 



150 CONSTITUTION OF THE CHURCH 

T am not aware whether the case has ever occurred 
of deputies of a diocese, lay or clerical, being present and 
refusing to vote. Is it to be considered that the diocese is, 
still represented, so that it must be counted in order to decide 
whether a majority of the dioceses have voted for a resolu- 
tion ? The general test of representation is in practice the 
actual voting. The clerk considers and counts those Dioceses 
which vote as represented. 
r „ This branch of the article provides for the case 

§ 5. Case op r 

Absent of an omission of the convention to appoint lay de- 
legates or clerical delegates, or of the neglect o* 
any of those of either order to attend, or a prevention by acci- 
dent or sickness. In such case the diocese is represented by 
any deputy, lay or clerical, who may attend. 

Now undoubtedly this is not meant as a representation of 
both orders of a diocese, in such cases, by the presence of a 
deputy of one order. (See Hawks' Con. Sf Canons, p. 21.) The 
distinction is between a representation of an order, and that 
of a diocese. A diocese may be represented by a single de- 
puty of either order in the cases specified ; and this leads to a 
qualification of the rule laid down by the committee on canon 
laws before quoted, that one lay and one clerical deputy must 
be present in order to proceed to business. I apprehend that 
a full representation of fourteen dioceses, with a clerical de- 
puty from another, if all the lay delegates were prevented by 
sickness, &c, would suffice. 

And with respect to the other clause of the inquiry ad- 
dressed in 1844 to the committee, viz., " what constitutes a 
majority of the house voting by dioceses and orders," it may 
be suggested, that it is a majority of the votes of the dioceses 
present by a clerical representation, concurring with a ma- 
jority of the votes of the dioceses present by a lay representa- 
tion ; the votes in each case being given separately. 

Thus there are 28 dioceses. If 26 are represented in the 



AND THE GENERAL CONVENTION. 151 

clerical order, 14 must vote affirmatively to carry a measure ; 
and it is wholly immaterial how many vote negatively, and 
how many are divided. If 23 dioceses are represented in the 
lay order, twelve must in like manner vote affirmatively. 
And if fourteen in the one order and twelve in the other do so, 
the measure is carried. 

But to test the above views as to both questions submitted 
to the committee — 1st, It is supposed to be clear that if there 
is a representation of fifteen dioceses in the clerical order, and 
thirteen in the lay order, (the lay deputies of all other dioceses 
being prevented by sickness, &c, or not appointed,) there are 
the requisites of a quorum to transact business. 

Then upon a vote by orders, eight would be a majority of 
dioceses in the clerical order ; and seven in the lay order. It 
is submitted that such a vote would be legal, and bind the 
dioceses whose deputies did not attend. 

But to put an extreme and test case. — Suppose a full re- 
presentation in the lay order of fifteen dioceses, and no diocese, 
or but one, represented in the clerical order : would it be suf- 
ficient ? It is submitted, it would not. 

The constitution must be so construed on this point, as 
that each provision in it may have effect. Now, a vote by 
orders may be required : and when required, the vote of the 
order is decided by a majority of the dioceses represented in it. 
Hence it seems necessary to meet this case, that there should 
be, first, a representation of each order ; and next, such a re- 
presentation as admits of a majority. It is therefore presumed 
that there must be a representation in the case supposed, of 
at least three dioceses. 

The conclusion then seems to be, that the convention is 
competent to transact business if there is a representation in 
one order of a majority of the dioceses in union, and a repre- 
sentation in the other order of three or more dioceses. 



152 CONSTITUTION OF THE CHURCH 

The question as to alterations of the constitution is very 
different, as will be afterwards noticed. 



Article III. 
(1848.) 
The Bishops of the Church, 
when there shall be three or 
more, shall, whenever G-eneral 
Conventions are held, form a 
separate house, with a right to 
originate and propose acts for 
the concurrence of the House 
of Deputies, composed of cler- 
gy and laity ; and when any 
proposed act shall have passed 
the House of Deputies, the 
same shall be transmitted to 
the House of Bishops, who 
shall have a negative there- 
upon ; and all acts of the 
convention shall be authen- 
ticated by both Houses. 



And in all cases the House 
of Bishops shall signify to the 
convention their approbation 
or disapprobation (the latter 
with their reasons, in writing,) 
within three days after the 
proposed act shall have been 
reported to them for concur- 
rence : and in failure thereof, 
it shall have the operation of a 



Article III. 
(1789.) 

The Bishops of this Church, 
when there shall be three or 
more, shall, whenever General 
Conventions are held, form a 
separate house, with a right to 
originate and propose acts for 
the concurrence of the House 
of Deputies, composed of cler- 
gy and laity ; and when any 
proposed act shall have passed 
the House of Deputies, the 
same shall be transmitted to 
the House of Bishops, who 
shall have a negative there- 
upon, unless adhered to by 
four-fifths of the other house ; 
and all acts of the Convention 
shall be authenticated by both 
Houses. 

And in all cases the House 
of Bishops shall signify to the 
convention their approbation 
or disapprobation (the latter 
with their reasons, in writing,) 
within three days after the pro- 
posed act shall have been re- 
ported to them for concurrence ; 
and in failure thereof, it shall 
have the operation of a law. 



AND TBE GENERAL CONVENTION 153 

law. But until there shall be But until there shall be three 

three or more Bishops as afore- or more Bishops as aforesaid, 

said, any Bishop attending a any Bishop attending a Gre- 

Gfeneral Convention shall be a neral Convention shall be a 

member ex officio, and shall member ex officio, and shall 

vote with the clerical deputies vote with the clerical deputies 

of the diocese to which he of the state to which he be- 

belongs, and a Bishop shall longs, and a Bishop shall then 

then preside. preside. 



In the constitution as proposed in 1786, the provision (the 
fifth) was this : " In every state where there shall be a bishop 
duly consecrated and settled, and who shall have acceded to 
the articles of this ecclesiastical constitution, he shall be con- 
sidered as a member of the General Convention ex officio, and 
a bishop shall always preside in the General Convention, if 
any of the episcopal order be present." 

In the constitution as adopted in August, 1789, the bishops, 
when there should be three or more, were to form a House of 
Revision, and any act of the convention was to be sent to them 
for concurrence. If not concurred in, it would yet become a 
law if three-fifths of the convention adhered to it. (Bioren, 
p. 61.) In October, 1789, the deputies from Connecticut, 
Massachusetts and New Hampshire expressed their willing- 
ness to join in the union> provided- the third article was so 
amended as to give to the House of Bishops the right to origi- 
nate acts, and a full negative. A committee of the conven- 
tion 1 reported in favor of both propositions, "as having a 
tendency to give greater stability to the constitution, without 
diminishing any security possessed by the clergy or laity." 

Trie convention adopted the first branch of the recommen- 
dation, but modified the right to a negative so as to enable 

1 Rev. Dr. William Smith, Rev. Dr. Robert Smith, Rev. Dr. Benja- 
min Moore. Richaru Harison, and Tench. Cox. Esqrs. 



154 CONSTITUTION OF THE CHURCH 

four-fifths of the House to pass the act. Bishop Wh'te states 
" that the report as to a full negative would have been adopted 
had not a gentle-nan from Virginia stated, that it might cause 
the measure to be disowned in that state. The eastern gen- 
tleman acquiesced, but reluctantly. Had there been no more 
than their apprehension of laws passing by a majority of four- 
fifths after a non-occurrence of the bishops, the extreme 
improbability of this would, it is thought, have been confessed 
by them. But the truth is, they thought that the frame of 
ecclesiastical government could hardily be called episcopal, 
while such a matter was held out as speculatively possible." 

In 1792, a proposition was submitted to render this nega- 
tive absolute, and in 1808, it was passed by six out of seven 
states represented, with the clerical vote of Pennsylvania ; the 
laity not voting, though favorable to the measure, on the 
ground that the proposition had not been communicated to 
the state convention. 1 

Indeed the progress of this measure is a remarkable tribute 
to the prevalence of just Church views. In the year 1787, 
we find South Carolina instructing her delegates to insist as a 
condition of union, that she should not be compelled to receive 
a bishop. Through a series of years we find Virginia declar- 
ing among her canons, that the office of a bishop differed in no 
respect from that of other ministers, except in the powers of 
ordination and confirmation, the right of superintending the 
conduct of the clergy, and of presiding in ecclesiastial assem- 
blies. So when the absolute veto was suggested we find the 
opposition to it invincible. But the feelings and prepossessions 
which induced all these actions have passed away, and I pre- 
sume it would be difficult to find a Churchman in the United 
States who would now advocate either of them. 



1 See Journal, 1303 ; p. 249, Bioren ; and Bishop White's Memoirs, 258. 



AND THE GENERAL CONVENTION. 



155 



Article IV. 
(1847.) 

The Bishop or Bishops in 
every Diocese, shall be chosen 
agreeably to such rules as 
shall be fixed by the conven- 
vention of that Diocese, (k 1.) 

Every Bishop of this 
Church shall confine the ex- 
ercise of his episcopal office to 
his proper diocese, unless re- 
quested to ordain, or confirm, 
or perform any other act of 
the episcopal office by any 
Church destitute of a Bishop. 
(§2.) 



Article IV. 
(1789.) 
The Bishop or Bishops in 
every state, shall be chosen 
agreeably to such rules as 
shall be fixed by the conven- 
tion of that state ; and every 
Bishop of this Church shall 
confine the exercise of his 
episcopal office to his proper 
diocese or district, unless 
requested to ordain, or con- 
firm, or perform any other act 
of the episcopal office by any 
Church destitute of a Bishop. 



In 1838, the words, " or district," were stricken out, and 
the word diocese substituted for state. The article in 1785, 
was almost identical with the present. 

I look upon the first clause of this article as 
adopted in order to exclude the G-eneral Convention ^ choicT ° F 
from passing regulations for the choice of a Bishop. 
It was deemed more appropriate for the action of the dioceses ; 
yet but for this clause, a canon of the General Convention 
would have governed it. 

Dr. Hawks has pointed out the use which was made of 
this part of the canon in the discussions respecting Bishop 
Meade, when elected Assistant Bishop in Virginia, in the year 
1827. The convention had annexed a proviso to the act of 
election, declaring that such election should not be deemed to 
entitle him to the situation of Bishop on the death of Bishop 
Moore, the diocesan. 

When the case was before the General Convention, various 



156 CONSTITUTION" OF THE CHURCH 

objections were made to this provision. A considerable num- 
ber were so opposed to it as to consider it sufficient to justify 
a refusal to sign the testimonial unconditionally ; but they 
were willing that it should be delivered by the presiding 
Bishop, upon his receiving evidence of a resolution by Vir- 
ginia, that the Assistant Bishop should succeed. A resolution 
passed the House of Bishops expressing their disapprobation 
of the provision, and one equally strong was adopted in the 
House of Deputies. (See Journals, 1829, pp. 24 and 83.) 

At the next Convention of Virginia, the condition was re- 
scinded, and thus another proof was given how surely mode- 
ration in the assertion of undoubted principles will lead to 
success. 

In the G-eneral Convention of 1829, a canon was passed, 
preventing the recurrence of the difficulty, and meeting the 
case. After providing for the cases in which an Assistant 
Bishop might be elected, it was declared that he should in all 
cases succeed the Bishop in case of surviving him. The pre- 
sent canon is the 6th of 1832. This will be more particularly 
noticed in another part of the work. 

The methods of electing a Bishop in the various dioceses, 
are in some particulars alike. In North Carolina, for example, 
the following is the provision : " The order of the clergy shall 
nominate and appoint by ballot, some fit and qualified clergy- 
man for that office, and if this appointment be approved by 
the lay order, he shall be declared duly elected. In the nomi- 
nation and appointment, a majority of each order shall deter- 
mine the choice, provided that two-thirds of all the clergy en- 
titled to vote be present, and two-thirds of all the congrega- 
tions entitled to vote be represented ; otherwise two-thirds of 
the votes of each order shall be necessary to determine the 
choice." (Const. Art. 10.) 

The tenth article of the Constitution of South Carolina is 
similar ; that of Florida is in precisely the same words ; and 

1 



AND THE GENERAL CONVENTION. 157 

that of Wisconsin to the same effect. (Art. 11.) (Art. 6.) 
That of Mississippi is this : " In the election of a Bishop the 
clergy and laity shall vote separately, (the clergy individually, 
and the laity by congregations,) and the concurrence of a ma- 
jority of each order shall be necessary to constitute a decision." 

In New-York, the two orders must always vote separately ; 
the clergy by individuals, and the laity by congregations. The 
concurrence of a majority of each order is necessary for a de- 
cision. 

In Maryland, the clergy choose by ballot, and the vote of 
two-thirds of that order is necessary. The appointment is 
presented to the order of lay delegates, and must be approved 
of by two-thirds of that order. It may be observed, that there 
is but one lay delegate from every parish. The regulation in 
Virginia is the same, except that a majority of each order is 
sufficient. 

In Connecticut, the two orders shall separate, and the or- 
der of the clergy choose a person by ballot, and communicate 
it to the order of lay delegates ; and if on ballot, the person is 
approved by the lay order, he shall be declared duly elected. 
In the above-mentioned election, a majority of each order 
shall determine a choice, provided that two-thirds of all the 
clergy entitled to vote be present ; otherwise two-thirds of the 
vote of each order present shall be necessary to determine a 
choice." 

From these examples it will be seen that great uniformity 
prevails, not only in requiring the assent of the laity to a 
choice, but also in conducting the election by a vote of orders; 
and generally in making the lay vote a vote of churches or 
congregations. 

The necessity of a union of a representation of the Laity 
in the election of a Bishop, is but a recurrence to the practice 

1 These various provisions are taken from the different Journals of 
1847. 

11 



158 CONSTITUTION OF THE CHURCH 

of primitive times. It may be doubted indeed, whether the 
same well defined power of the people existed ; whether there 
was an absolute necessity for their approbation ; but at least 
they were consulted, and in some instances it certainly ap- 
pears that the election was by the suffrage of the clergy and 
the people. 1 

§ 2. Restric- A Diocese signifies the circuit of a Bishop's 
tion to Dio- jurisdiction. The method of ascertaining the 
CESE ' boundaries on a question of jurisdiction is pointed 

out in Burns 1 Ecclesiastical Law. 2 Such a question can 
scarcely arise in our country, where the dioceses are usually 
co-extensive with states, and upon a division of a state are 
accurately fixed. 

The rule which is embodied in this part of the constitution 
is among the oldest recorded in the legislation of the Church. 5 
A bishop, however, may perform divine offices and use his 

1 I believe that Van Espen stands as high as a canonist as any 
other, especially among ihose who oppose the usurpations of the Pope 
upon the prerogatives of monarchs, or the authority of bishops. In his 
chapter De Elec. & Nom. Episcoporum, Part 1, Tit. 13, Cap. 1, may be 
found a full list of authorities. One of them runs thus : " Sed et Laid 
nobiles ac civcs adesse debebunt ; quoniam ab omnibus debet eligi : cui debet 
ab omnibus obediri. ,J But in another passage he says : u Neque etiam 
eo tempore electio ilia plebis jus aliquod ad rem dabat ipsi electo, sed 
potius erat simplex postulatio ipsius plebis et cleri, de persona sibi grata 
ordinanda in suum pastorem." 

The same author points out how the election gradually fell upon 
the Cathedral chapters. 

2 Vol. 2, p. 157, a. 

s Van Espen (Part 1, Tit. 16, Cap. 3.) enters largely into the subject. 
He cites the twenty-second canon of Antioch, A. D. 351 : "In aliam 
civitatem quee ei subjecta non est, non ascendat, nee in regionem quae 
ad eum non pertinet ad alicujus ordinationem nee Presbyterum nee 
Diaconum constituat in locis alio Episcopo subjectis. nisi cumvoluntate 
proprii illius regionis Episcopi." Again: " Hsecque disciplina con- 
fusioni tollendse adeo neoessaria visa fuit. ut earn Ecclesia in hodiernam 
usque diem conservaverit, variisque canonibus frequenter stabilierit. 
interdixeritque severe Episeopis. in aliena Dia3cesi quidquam ordinare 
aut agere sine licentia Episcopi Diaecesis illius," &c. 



AND THE GENERAL CONVENTION. 159 

episcopal habit in the diocese of another. 1 Thus, all offices 
not strictly appertaining to the episcopal function — adminis- 
tering the communion, &c, may be performed by him. 

The General Convention has passed a canon for the regu- 
lation of the performance of episcopal duties in vacant dio- 
ceses, or where the bishop is under a disability. This subject 
will be more fully discussed in another part of this work. 



Article V. 

A Protestant Episcopal Church, in any of the United 
States, or any territory thereof, not now represented, may at 
any time hereafter be admitted, on acceding to this constitu- 
tion. A new diocese, to be formed from one or more existing 
dioceses, may be admitted under the following restrictions : 

No new diocese shall be formed or erected within the 
limits of any other diocese, nor shall any diocese be formed by 
the junction of two or more dioceses or parts of dioceses, un- 
less with the consent of the bishop and convention of each of 
the dioceses concerned, as well as of the General Convention. 

No such new diocese shall be formed which shall contain 
less than eight thousand square miles in one body, and thirty 
presbyters who have been for at least one year canonically 
resident within the bounds of such new diocese, regularly 
settled in a parish or congregation, and qualified to vote for a 
bishop. Nor shall such new diocese be formed, if thereby any 
existing diocese shall be so reduced as to contain less than 
eight thousand square miles, or less than thirty presbyters, 
who have been residing therein, and settled and qualified as 
above mentioned. 

In case one diocese shall be divided into two dioceses, 
the diocesan of the diocese divided may elect the one to 
which he will be attached, and shall thereupon become the 

1 Burns' Ecclesiastical Law, vol. 2, p. 158. He cites the Clem., 5, 7, 
2 : <; Simili modo ccncedimus cpiscopout in locis eisdem ) ' } kc. 



160 CONSTITUTION OF THE CHURCH 

diocesan thereof; and the assistant Bishop, if there be one, 
may elect the one to which he will be attached, and if it be 
not the one elected by the Bishop, he shall be the diocesan 
thereof. 

Whenever a division of the diocese into two dioceses shall 
be ratified by the General Convention, each of the two dio- 
ceses shall be subject to the constitution and canons of the 
diocese so divided, except as local circumstances may pre- 
vent, until the same may be altered in either diocese by the 
convention thereof; and whenever a diocese shall be formed 
out of two or more existing dioceses, the new diocese shall 
be subject to the constitution and canons of that one of the 
said existing dioceses to which the greater number of clergy- 
men shall have belonged prior to the erection of such new 
diocese, until the same may be altered by the convention of 
the new diocese. 

In carrying out this article of the constitution the General 
Convention has passed the eighth canon of 1838. 

§ 1. Whenever any new diocese shall be formed, within 
the limits of any other diocese, or by the junction of two or 
more dioceses or parts of dioceses, and the same shall have 
been ratified by the General Convention, the Bishop of the 
diocese within the limits of which another is formed, or in 
case of the junction of two or more dioceses or parts of dio- 
ceses, the Bishop of eldest consecration over the dioceses fur- 
nishing portions of such new diocese shall thereupon call the 
Primary Convention of the new diocese, for the purpose of 
enabling it to organize, and shall fix the time and place of 
holding the same, such place being within the territorial limits 
of the new diocese. 

§ 2. In case there should be no Bishop who can call such 
Primary Convention pursuant to the foregoing provisions, 
then the duty of calling such convention for the purpose of 
organizing, and the duty of fixing the time and place of its 



AND THE GENERAL CONVENTION. 161 

meeting, shall be vested in the Standing Committee of the 
eldest of the dioceses, by the junction of which, or parts of 
which, the new diocese may be formed. And such Standing 
Gommittee shall make such call immediately after the ratifi- 
cation of a division by the General Convention. 

§ 3. Whenever one diocese is about to be divided in two 
dioceses, the convention of the said diocese shall declare 
which portion thereof is to be the new diocese, and shall 
make the same known to the General Convention before the 
ratification of such division. 



The first part of this article relates to the formation of a 
new diocese in a state or territory in which no diocese has 
before existed. 

In 1789 the article was merely this — A Protestant Epis- 
copal Church, in any of the United States, not now repre- 
sented, may at any time hereafter be admitted, on acceding 
to this constitution. 

In 1838 the words " or any territory thereof, " were in- 
serted in the first clause, and the residue of the article added. 

In the case of "Wisconsin, in 1847, the following was the 
course of proceeding : — The missionary Bishop invited all the 
clergy canonically connected with him, and resident in Wis- 
consin, to meet at a certain place and time, and to bring with 
them a delegate or delegates, not exceeding four from each 
parish with which they were connected, for the vacant parishes 
in their vicinity. The meeting was organized, the mission- 
ary Bishop in the chair, and passed rules of order, adopted a 
constitution and canons, and appointed delegates to the Gen- 
eral Convention. 

At the General Convention, in October, 1847, the appli- 
cation for admission into union, together with a copy of the 
constitution, was presented, and referred to a committee. — 
Journal, p. 16.) 



162 CONSTITUTION OF THE CHURCH 

The committee reported that they had examined the con- 
stitution, and finding an accession to the general constitution 
and canons of the Church, recommended that the diocese of 
Wisconsin be admitted into union with the General Conven- 
tion of the Protestant Episcopal Church in the United States. 
The House of Bishops concurred. 

On some occasions the House of Bishops has exercised the 
right of passing upon the constitution and canons of the 
Church applying. Thus, in 1829, upon the application of 
Tennessee, the committee to whom was referred the constitu- 
tion and canons, reported, that they recommended a concur- 
rence with the resolution of the House of Clerical and Lay 
Deputies, but at the same time proposed " that it be recom- 
mended to the convention of that diocese to repeal the pro- 
viso to the third canon, passed July 2d, 1824, as highly in- 
expedient in itself, and not conformable to the principles of 
the Church." — (Journal, page 79.) "With this the other 
house concurred. — {Ibid. p. SO.) 

So upon the application of Kentucky, the committee re- 
ported that they had examined the constitution of the said 
diocese, and found it conformable to the principles and order 
of the Church. 

In 1832, upon the application of Michigan, the clause of 
accession to the constitution of the Church was omitted in the 
constitution of that diocese. There was, however, other evi- 
dence in its journals of the fact. The committee reported 
that it was highly proper and expedient that the declaration 
of accession, and the acknowledgment of the authority of the 
constitution and canons, should appear in the constitution of 
any Church applying to be admitted into union. They recom- 
mended a resolution of admission, with the expectation that 
the omission would be supplied. The convention adopted the 
resolution. 

§ 2. As before observed, the latter part of the article, and 



AND THE GENERAL CONVENTION. 163 

the eighth canon under it, were adopted in tho year 1838. 
This arose from the application of New- York for a division of 
the diocese. 

It is not necessary to state the various views which were 
taken upon this subject, and the other measures preferred by 
a considerable body of the churchmen of the diocese. The 
discussions resulted in a vote of the convention, September 11, 
1838, that the Protestant Episcopal Church in the state of 
New- York be divided into two dioceses, and that the line of 
certain counties, as established by law, be the boundary line 
between them ; that the delegates be requested to present the 
resolution to the General Convention, &c, and request its ra- 
tification of and consent to the said division. 

To this was added the consent of Bishop Onderdonk, of 
New- York, pursuant to the constitutional provision. 

A resolution was then adopted, reciting the above men- 
tioned documents, and declaring that the convention did ratify 
the said division of the diocese of New- York into two dioceses, 
by the formation within its limits of the new diocese above 
described, such division to take effect on the first of November 
next ; and that this convention does hereby recognize the 
union with the General Convention of the new diocese west 
of the above named counties, &c. 



Article VI. Article VI. 

(1848.) (1789.) 

The mode of trying Bishops In every state the mode of 

shall be provided by the Gen- trying clergymen shall be in- 

eral Convention. The court stituted by the convention of 

appointed for that purpose th© Church therein. At every 

shall be composed of Bishops trial of a Bishop there shall 

only. In every diocese the be one or more of the Episco- 

mode of trying Presbyters and pal order present, and none 

Deacons may be instituted by but a Bishop shall pronounce 



164 CONSTITUTION OF THE CHURCH 

the convention of the diocese, sentence of deposition or de- 
None but a Bishop shall pro- gradation from the ministry 
nounce sentence of admoni- on any clergyman, whether 
tton, suspension, or degrada- Bishop, Presbyter, or Deacon, 
tion, on any clergyman, whe- 
ther Bishop, Presbyter, or 
Deacon. 



The article of 1789 was varied in 1838, by substituting 
the word diocese for state, and so continued until 1841, when 
the first two sentences were added to it, and the other altera- 
tions made. The words italicized will show the omissions 
and variations. 

The first clause of this article will be adverted to hereafter, 
when the canon which has been adopted under it is examined ; 
and the last clause under the head of Sentences. The change 
in the other clause requires particular attention. 

In the article of 1789 — and so it continued until 1841 — the 
phrase was, "the mode of trying clergymen, in every state, 
shall be instituted by the convention of the Church therein." 
It is now, " may be instituted." Dr. Hawks, it will be seen, 
has twice adverted to the subject of the impossibility of ob- 
taining uniformity in the judicial decisions of the Church, 
while each diocese is left to its own system of proceedings and 
rule of decision. (See Constitution andCanons, pp. 34 and 57.) 
He treats this as the weakest part of our ecclesiastical ar- 
rangement, and states that a canon had been prepared upon 
the subject, which lay over among the unfinished business of 
1835 and 1838, but that it was doubtful whether a canon 
could accomplish it while this article of the constitution was 
in force. In 1841, as before observed, this article was changed, 
and the word may was substituted for the word shall. The 
clause is now, " that in every diocese the mode of trying 
clergymen may be instituted by the convention of the diocese.' 5. 



AND THE GENERAL CONVENTION. 165 

It is probable that this change was made with a view to 
this question of the authority of the General Convention, al- 
though I have not found any action or resolution to prove the 
supposition. But the point does not yet seem free from dif- 
ficulty. 

Let the case be supposed of a canon for trial of a clergy- 
man passed in a diocese, and a canon of the General Conven- 
tion afterwards passed, varying from and inconsistent with 
some portion of the diocesan law. Is the latter superseded ? 
On the one side, this view may be presented — The separate 
dioceses had the original exclusive right to legislate upon the 
subject. Had the constitution of 1789 contained nothing re- 
specting it, the right would have been vested in the General 
Convention, leaving the power in the diocese to legislate pre- 
vious to an action by that body, but then superseding that 
power. But the several dioceses did in the constitution de- 
clare that the mode should be instituted by the particular con- 
ventions — thus, it must be admitted, excluding the Grenerai 
Convention from acting at all. Then came the alteration in 
1841. Now this alteration amounts to a permission for the 
separate conventions to establish the mode of trial. It is con- 
sistent with, perhaps implies the existence of, the same power 
in another body. That body is the Grenerai Convention. But 
can that power be more than concurrent ? And if no more, 
then, when a diocese has exercised the power, it will be dif- 
ficult to sustain a right in the Grenerai Convention to super- 
sede it. The analogous rule may apply, that where there is 
a concurrent jurisdiction, the tribunal which has first obtained 
control of the case retains it. 

On the other side, this view of the question may be taken : 
If there was no article of the constitution, the Grenerai Con- 
vention would possess the power. The dioceses could, how- 
ever, act until the General Convention acted. When the latter 
adopted a canon on the subject, that would be supreme and 



166 CONSTITUTION OF THE CHURCH 

exclusive in all points which it reached. Now the clause al- 
lowing the separate conventions to provide the mode, was 
merely a declaratory recognition of the law. They had the 
authority without it. These conventions, then, can be in no 
stronger position under the clause than they would have been 
without it. Their canons would be superseded by the act of 
the Greneral Convention in the one case ; they will be so 
equally in the other. The construction then is, that the dio- 
ceses may act until the Greneral Convention dues so. 

It will be seen that this argument rests on the principle 
advocated in this work, of an inherent power in the Greneral 
Convention, not derived from a grant in the constitution. If 
that principle is sound, then the latter view, in the judgment 
of the author, is the true one. 



Article VII. 

No person shall be admitted to holy orders until he shall 
have been examined by the Bishop and by two Presbyters, 
and shall have exhibited such testimonials and other requi- 
sites as the canons in that case provided may direct. Nor 
shall any person be ordained until he shall have subscribed 
the following declaration : 

" I do believe the Holy Scriptures of the Old and New 
Testaments to be the word of Grod, and to contain all things 
necessary to salvation ; and I do solemnly engage to conform 
to the doctrines and worship of the Protestant Episcopal 
Church in the United States." 

No person ordained by a foreign Bishop shall be permitted 
to officiate as a minister of this Church until he shall have 
complied with the canon or canons in that case provided, and 
shall have also subscribed the aforesaid declaration. 

This is precisely the form in which the article was adopted 
in 1789. 



AND THE GENERAL CONVENTION. 



167 



In 1786 the first clause ran thus — No person shall be or- 
dained until due examination by the Bishop and two Presby- 
ters, and exhibiting testimony of his moral character, signed 
by the minister and a majority of the vestry of the church 
where he has last resided. 

The clauses of this article will be particularly referred to 
when the canons passed in accordance with it are treated of. 



Article VIII. 

1848. 

A Book of Common Prayer, 
Administration of the Sacra- 
ments, and other rites and 
ceremonies of the Church, ar- 
ticles of religion, and a form 
and manner of making, or- 
daining, and consecrating Bi- 
shops, Priests, and Deacons, 
when established by this or a 
future General Convention, 
shall be used in the Protest- 
ant Episcopal Church in those 
dioceses which shall have 
adopted this constitution. 

No alteration shall be 
made in the Book of Common 
Prayer, or other offices of the 
Church, or the articles of re- 
ligion, unless the same shall 
be proposed in one General 
Convention, and by a resolve 
thereof made known to the 
convention of every diocese, 
and adopted in the subsequent 
General Convention. 



Article VIII. 
(1789.) 
A Book of Common Prayer, 
Administration of the Sacra- 
ments, and other rites and 
ceremonies of the Church, ar- 
ticles of religion, and a form 
and manner of making, or- 
daining, and consecrating Bi- 
shops, Priests, and Deacons, 
when established by this or a 
future General Convention, 
shall be used in the Protest- 
ant Episcopal Church in those 
states which shall have adopt- 
ed this Constitution. 



168 CONSTITUTION OF THE CHURCH 

The second paragraph of this article was adopted by the 
General Convention of 1811, but without the words, " or the 
articles of religion." These were introduced in 1829. — 
Journals 1811, p. 274; do. of 1829, p. 23-27. 



THE BOOK OF COMMON PRAYER. 

The reformation for the people and the purity of the 
Church, can scarcely be said to have commenced until the 
reign of Edward the Sixth. That for the king, Henry the 
Eighth, was accomplished, when he had superseded the Pope, 
and plundered the monasteries. The statutes of the thirty- 
five and thirty-eight years of his reign, concerning the Six 
Articles, were parliamentary recognitions of gross papal er- 
rors. Some feeble attempts at framing a liturgy had been 
made, but in general the Mass Book and Breviaries remained 
in common use, with the exception of passages relating to the 
Pope, or the office of Becket. 1 

But the true light of the Reformation arose in the reign of 
the last of the Edwards, whom the historian and divine may 
vie in honoring — of " that royal and godly child, the flower of 
the Tudor name ; that serious and holy child, who walked 
with Cranmer and Ridley, the fit associate for the Bishops 
and future martyrs of the Church." In the first year of his 
accession the statutes before referred to were repealed, and in 
the second year, the act to provide for a Book of Common 
Prayer was passed. With some changes, made in the time of 
Elizabeth, of James, and of Charles, that book was brought 
to the Church of the colonies, and there sustained the faith 
and awakened the devotion of our forefathers ; with reve- 
rential hands was it modelled at the Revolution ; and with 
sacred zeal has it been guarded since, and fidelity to it is the 
safety of the Church. 

By the fundamental articles of 1784, it was proposed that 

1 Gibson's Codex, vol. i. p. 294. 



AND THE GENERAL CONVENTION. 169 

the Church should adhere to the Liturgy of the Church of 
England, as far as should be consistent with the American 
Revolution and the constitutions of the respective states. 

In September, 1785, a committee was appointed to con- 
sider and report such alterations in the Liturgy as shall ren- 
der it consistent with the American Revolution and the 
constitutions of the respective states, and such further 
alterations as it may be advisable for this convention to 
recommend. 

The report having been made, was discussed through 
several days, and on the 5th of October, 1785, it was resolved, 
"that the Liturgy shall be used in this Church as accomo- 
dated to the Revolution, agreeably to the alterations now 
approved of and ratified by this convention." l 

It appears that the committee reported, and the conven- 
tion acted separately, upon two branches of the resolution of 
reference ; the one simply the alterations rendered necessary 
by the revolution, the other the suggested alterations of 
another character. The resolution before mentioned, of the 5th 
of October, covered the first case. On the same day, both in 
the morning and an evening session, the proposed alterations 
were discussed, and it was resolved, " that such alterations 
be proposed and recommended to the Protestant Episcopal 
Church in the states from which there are deputies to this 
convention." ' 2 

The fourth article of the General Ecclesiastical Constitu- 
tion of 1785 directed that the Book of Common Prayer, Ad- 
ministration of the Sacraments, &c, should be continued to 
be used in the Church, as altered in a certain instrument in 
writing, passed by their authority, entitled "Alterations of 
the Liturgy of the Protestant Episcopal Church, in order to 
render the same conformable to the American Revolution and 
the constitutions of the respective states." 

Bioren, 5-10. 2 Bioren, p. 11. 



170 CONSTITUTION OF THE CHURCH 

As, however, this constitution required the ratification of 
the states to be binding, they were at liberty to use the book or 
not, as they thought proper. 

The other branch of the alterations — those proposed to the 
Church in the states — was made the subject of the ninth 
article, declaring that they shall be used when ratified by the 
conventions which had sent deputies to that General Con- 
vention. 

In 1786 the letter of the archbishops and bishops of Eng- 
land was written, in which they say : "We cannot but be 
extremely cautious, lest we should be the instruments of 
establishing an ecclesiastical system which will be called a 
branch of the Church of England, but afterwards may possibly 
appear to have departed from it essentially, either in doctrine 
or in discipline." l 

On the 14th of June, 1786, the convention of New- York 
resolved, that (out of respect to the English bishops, and be- 
cause the minds of the people are not yet sufficiently informed) 
the consideration of the Book of Common Prayer, with the 
proposed alterations, be deferred to a future day. 2 

The Church in Maryland, had in effect approved of the 
Book, desiring, however, some alterations, which she directed 
her representatives to endeavor to obtain. The principal of 
these was that of the Nicene Creed. 3 

In Virginia, the book as proposed was adopted in May, 
1786, with the single exception of the rubric before the 
communion service, which excluded evil livers from the 
Sacraments. 4 

The Church in New- Jersey, met in Convention, in 1786, 
and approved of all the political alterations in the Book of 
Common Prayer, and disapproved of the other changes. In a 
memorial to the General Convention they say, that they do 

1 Bioren, p. 20. "Journals, OnderdonTc's ed. p. 9, 

3 Hawk's Contr. &c, vol. 2, p. 307. 4 Ibid., vol. 1, p. 192. 



I 



AND THE GENERAL CONVENTION. 171 

not question the right of every national Church to make such 
alterations in the mode of public worship as upon mature con- 
sideration may be found expedient ; but they doubt the right 
of any order or orders of men in an Episcopal Church, with- 
out a Bishop, to make alterations not warranted by immediate 
necessity, especially such as not only go to the mode of its 
worship, but also to its doctrines. 

In the General Convention of June, 1786, the fourth arti- 
cle remained unchanged ; the ninth was altered so as to pro- 
vide that such book should be in use "till further provision 
is made in this case by the first General Convention which 
shall assemble with sufficient powers to ratify a Book of Com- 
mon Prayer for the Church in these states." 

On the 11th of October, 1786, an act of the General Con- 
vention was passed, reciting the articles of 1785, relating to 
the Book of Common Prayer, &c, the proposed alterations 
therein, the address to the Bishops of England, and their 
answer; and declaring their steadfast resolution to maintain 
the same essential articles of faith and discipline with the 
Church of England ; and then proceeding to declare, " that, 
in the creed, the words ' he descended into hell,' shall be and 
continue a part of that creed," and that the Kicene creed 
should be inserted. 

Finally, in October, 1789, the Prayer Book was established 
in the form in which it now exists. 

In 1826, various alterations in the liturgy were proposed,, 
and by a vote of the Convention sent to the several Dioceses 
for consideration. 

The Convention of Connecticut unanimously resolved that 
the alterations proposed were inexpedient, (Journal, 1829, p. 
42.) That of Virginia instructed the delegates to oppose 
them. I gather from an examination of the journals of New- 
Jersey, that no action was taken in the Convention. One step 
was taken there which deserves notice. The proposed altera- 



172 



CONSTITUTION OF THE CHURCH 



tions were directed to be read by every clergyman to his con- 
gregation. (Journal, 1827, p. 24. 

I have before observed, that the second paragraph of this 
article was not adopted until 1811. It must have been sup- 
posed that the clause making the Prayer Book binding when 
established by that or any future Convention, left it within the 
power of a Convention to alter it at any meeting ; that the 
ninth article was, indeed, superseded by this clause. It de- 
serves notice, also, that a majority of the Dioceses in union is 
not in terms required for alteration in the Prayer Book or 
Articles, as is made necessary by the 9th Article as to general 
alterations of the Constitution. This subject, however, and 
the import of the clause, I propose to discuss under the ninth 
article, to which I refer. 



Article IX. 
(1848.) 
This Constitution shall be 
unalterable, unless in General 
Convention, by the Church, in 
a majority of the Dioceses, 
which may have adopted the 
same ; and all alterations shall 
be first proposed in one Gene- 
ral Convention, and made 
known to the several Diocesan 
Conventions, before they shall 
be finally agreed to, or ratified 
in the ensuing General Con- 
vention. 



Article IX. 
(1789.) 
This Constitution shall be 
unalterable, unless in General 
Convention, by the Church, 
in a majority of the States, 
which may have adopted the 
same ; and all alterations shall 
be first proposed in one Gene- 
ral Convention, and made 
known to the several State 
Conventions, before they shall 
be finally agreed to, or ratified 
in the ensuing General Con- 
vention. 



The word States was changed into Dioceses in 1838. 
I submit that this article may be thus analyzed : 

1 BlORENj p. 41. 



AND THE GENERAL CONVENTION. 173 

1. The Constitution is unalterable, except by a majority 
of the Churches in those Dioceses which have adopted it. 

2. But the action and consent of such majority must be 
expressed in General Convention. 

3. This is carried into effect by a proposition being suggest- 
ed in one General Convention, and ratified in the succeeding 
one. 

4. That proposition must, in the interim, be made known 
to the several Diocesan Conventions. 

Dr. Hawks has written an able and elaborate note on this 
article, and adopts the following conclusions : 

1. That in all questions of constitutional or liturgical 
changes, the vote in the House of Clerical and Lay Deputies 
must be taken by Dioceses. 

2. That any Diocesan Convention has a right to make 
known its opinion of the proposed change in the General 
Convention. 

3. That the assent of a Diocese to a proposed change is to 
be presumed in General Convention, if it is silent, or has 
adopted no mode of making known its dissent. 

4. If a majority of the Diocesan Conventions do make 
known their dissent to any change, the General Convention 
ought not, against such expression of dissent, to alter the 
Constitution. 

It may also be a legitimate consequence of these positions, 
that the assent of a majority of the Diocesan Conventions 
shall control. 

I have the misfortune to differ from the learned annotator 
upon the chief part of these propositions. 

In the first place, the Diocesan Conventions are nowhere 
referred to as called upon to act, and the change made depen- 
dent upon their assent. The provision seems very clear that 
the majority of the Dioceses represented and acting in Gene- 
ral Convention, are exclusively clothed with the power. Had 
12 



174 CONSTITUTION OF THE CHURCH 

the intention been such as is supposed, explicit language would 
have been used. An analogous clause in the Constitution of 
the United States was before them, and would have averted 
doubt. The ratification of three-fourths of the Legislatures 
of the States is required in terms. The power to propose the 
change is admittedly in the Convention — the power to finally 
ratify it is in the same body. What restriction is there upon 
this authority? Merely the obligation to make the proposal 
known to the Diocesan Conventions. This may be for the 
purposes of consultation, of gathering views and information, 
of instructions to delegates. But it cannot rob the General 
Body of the ultimate and exclusive power of making or re- 
jecting the change. 

Again, : The error seems to be this — in looking upon the 
Diocesan Conventions as represented in the General Conven- 
tion, and the delegates as their representatives. But this is 
not the case. The Church in each Diocese is the body repre- 
sented. The separate Convention is indeed the organ to 
choose the delegates, but they become then the representatives 
of the Church in the Diocese, as absolutely and independently 
in the General Convention, as the deputies to the Diocesan 
Convention are of the same Church in that. 

If we consider various clauses of the Constitution and 
many canons, it will be seen that it is throughout the Church 
in ihe Diocese which is the body known in the Convention; 
and that there is not any just reason for saying that its con- 
stituency is the Diocesan Conventions. 

Thus, in the first article, the phrase is, "This Church in a 
majority of the Dioceses which shall have adopted this Con- 
stitution shall be represented ;" in the second article, " The 
Church in each Diocese shall be entitled to a representation of 
both the clergy and laity." " The Church and the Diocese is 
bound," where the Convention neglects to choose delegates. 
By canon five, ij the Church in a Diocese desires the conse- 



AND THE GENERAL CONVENTION. 175 

cration of a Bishop, steps are to be taken, &o. In short, the 
testimony is abundant that it is the Church, the aggregate of 
its clergy and laity, which is the true constituency. 

The result appears to be clear. The Diocesan Conven- 
tions have, as such, no voice or standing in the General Con- 
vention. The Diocese speaks through its representatives, the 
delegates. The General Convention can listen to no other 
exponent of its will. The separate Convention has control 
enough of a question submitted, by having the selection of 
the delegates. 

In other words, I read the article thus: The Church, by a 
majority of the Dioceses acting in General Convention, may 
alter the Constitution. Now the mode in which the Dioceses 
act in Convention, is through their delegates. The delegates 
then, and they alone, can alter. 

Again, the question may be considered in two points of 
view ; first, where a Diocese is not represented in General 
Convention; and next, where it is; and in each instance, 
several cases may occur. Thus if a Diocese is not repre- 
sented, and the Diocesan Convention has taken no action upon 
a proposed change, it seems cloar that the result must be the 
same as if there was a representation and the vote was 
adverse. There must be a majority of the Dioceses in union 
to pass the measure. There are at present twenty-eight Dio- 
ceses. There must be fifteen to effect a change. This num- 
ber must assent. No matter (for the present view of the 
case) how that assent is expressed. In some manner it must 
be uttered. 

But Dr. Hawks in his third proposition says, that the 
consent is to be presumed where the Diocesan Convention is 
silent. This proposition at least seems to me wholly untena- 
ble. Even if his main principle is sound, and the Diocesan 
Conventions are the actual bodies to pass upon the measure, 
it cannot be, that a presumption shall answer the requisition 



176 CONSTITUTION OF THE CHURCH 

of a consent; that other dioceses shall be bound by an as- 
sumption of acquiescence where a convention refuses to ex- 
press its judgment in any mode. 

Again :- — Suppose the diocese is not represented, and passes 
a resolution of disagreement. This produces precisely the 
same result as if it was silent. The change must have the 
same number in its favor, whether one diocese does nothing, 
or votes hostilely. The resolution becomes immaterial. 

And again : One other case may arise where there is no re- 
presentation- — that of a Diocesan Convention sanctioning the 
change by a formal resolution. Certainly it is in this case 
that Dr. Hawks' theory possesses the most plausibility. 

But here also it is submitted, that this resolution could 
not be regarded, and that the vote of the diocese would be 
lost. It appears to me that the Diocesan Convention is not 
constituted for this purpose, and does not possess any power 
in the matter. I revert to the proposition that it is the 
Church of the diocese which is represented by the delegates, 
not the separate convention. The dioceses act through their 
delegates in General Convention. The diocesan body has ex- 
hausted its authority when as the attorney of the true con-, 
stituency, it has appointed those deputies. Yet it would not 
necessarily follow, that if the General Convention accepted 
this secondary evidence of the will of a diocese, where it was 
not represented, it could at all regard it where it was. 

But in the second place, the question is to be treated 
where there is a representation of the diocese. 

If fc the Diocesan Convention has not acted upon the mea- 
sure, of course the delegates are the only exponents of the 
will of the diocese. But suppose the convention passes a for- 
mal resolution of agreement or disagreement to the proposed 
change, and the delegates vote in General Convention ad- 
versely to the resolution : — in this way is the point to be 
tested and determined. 



AND THE GENERAL CONVENTION . 177 

The principles above asserted lead of course to the conclu- 
sion that the General Convention must admit the votes of the 
delegates as decisive, and cannot regard the act of the partic- 
ticular convention. They, and they only, must be considered 
as the true representatives of the will of the diocese. They 
are the actual agents of the Church in the dioceses, as a sub- 
stituted attorney under a power of substitution, is the true 
attorney of the principal. 

It deserves, however, much consideration that the course 
of instructing delegates as to their votes upon a proposed al- 
teration has been exercised by the conventions. Thus, in 
1793, as to the negative of the House of Bishops, the Virginia 
Convention resolved, " that the deputies from the Protestant 
Episcopal Church in this state be instructed to express the 
highest disapprobation of this convention respecting the in- 
vesting of the House of Bishops with such negative." (Jour- 
nal, 1793, p. 60 ; 2 Hawks.) 

In New- York, in 1791, it was moved that the convention 
do instruct their delegates to vote in favor of conferring the 
power of a negative. But the clergy and laity being divided 
the motion was lost. 

In 1801 the Convention of New- York instructed their 
delegates to oppose and vote against the proposed alteration 
in the first article of the constitution, as respects the change 
of the time of meeting, from three to five years. (Journal, 
1801, p. 92.) 

In New- Jersey, a resolution was passed by the convention 
of 1795, " that the convention agree to vest the House of 
Bishops with the aforesaid negative." (Journal, p. 60, 1795.) 
In 1801, the convention of the same diocese instructed the 
delegates from the Church in that state to the next General 
Convention, to agree to the alteration of the first article of 
the Constitution. (Journal, 1801, p. 5.) 

The Convention of Connecticut, in 1801, resolved, that 



178 CONSTITUTION OF THE CHURCH, ETC. 

the delegates who shall represent this convention in General 
Convention be requested to advocate an alteration of the con- 
stitution. (Journal, 1801, p. 27.) 

That a suggestion or request to delegates may with pro- 
priety come from a Diocesan Convention is of course clear. It 
is frequently done by way of suggestion to the General Con- 
vention. It might be done by any vestry. But that instruc- 
tions, if communicated to the General Convention, bind it to 
observe them, in opposition to the vote of the delegates, seems 
a wholly inadmissible proposition. 

And upon the question of expediency there can be no 
doubt. The delegates should not be sent trammelled with di- 
rections, necessarily the result of a less comprehensive and 
matured consideration than will be had in the General Con- 
vention. They should be left free to think and decide for the 
whole Church, and to profit by the light of other minds. 



Article X. 

Bishops for foreign countries, on due application therefrom, 
may be consecrated, with the approbation of the Bishops of 
this Church, or a majority of them, signified to the Presiding 
Bishop ; he thereupon taking order for the same, and they 
being satisfied that the person designated for the office has 
been duly chosen and properly qualified. The order of conse- 
cration to be conformed, as nearly as maybe in the judgment 
of the Bishops, to the one used in this Church. Such Bishops, 
so consecrated, shall not be eligible to the office of diocesan or 
assistant Bishop in any diocese in the United States, nor be 
entitled to a seat in the House of Bishops, nor exercise any 
Episcopal authority in said states. 

This article was adopted in 1844. At the same time, 
Canon VII. was passed, and the article will be adverted to 
when that canon is considered. 



CHAP TEE II. 

OF THE CONSTITUTIONS AND CONVENTIONS OF 
THE DIOCESES. 



TITLE I. 
GENERAL OBJECTS AND NATURE OF THE CONSTITUTIONS. 

It is not proposed to enter into any minute detail of the 
various provisions of the constitutions of the several dioceses ; 
much less to state all their canonical regulations. But it will 
be useful to exhibit under some leading heads the rules which 
have been adopted for the establishment and conduct of con- 
ventions. Generally speaking, the constitutions are restricted 
to enactments of this character, and I have stated them as 
they exist in a large number of the dioceses ; sufficient at least 
to indicate some principles which prevail in them all. 

Thus the constitution of Virginia may be taken as the 
representative of almost all the others, and its provisions are 
found to be— 

1. Those for the meeting, composition, mode of action, and 
officers of the convention or officers of the diocese. 

2. The method of electing a Bishop, and 3d, The mode of 
altering the constitution. Every article, except the 5th and 
12th j comes under the first class. 



180 CONSTITUTIONS AND CONVENTIONS 

Some general observations upon the nature of our diocesan 
conventions may be useful. They represent the Episcopal 
synods of former periods of the Church, but with powers ex- 
pressly defined. In the judgment of the author, it cannot be 
doubted, that in the earliest ages, as soon as a system of dio- 
ceses was established, and the Bishop of each was restricted 
to its limits, the power of legislation vested in him. The in- 
evitable course of events, as well as the principles on which 
Episcopal authority rests, warrant this conclusion. At first, 
a regulation must have been adopted to meet, or was suggest- 
ed by, a particular case. As similar instances occurred, and 
the fitness of the former rule was proven, it was applied, until 
it became the ordinary regulation, and as such was known and 
fixed in the Church. Doubtless this was the origin of those 
" usages and institutions of churches," which we find adverted 
to and recognized in provincial councils. In fact, the exercise 
of judicial power did precede, and was the source of legisla- 
tion. From several decisions grew up a general law, and this 
was finally embodied and promulgated in a canon or institute. 
But that originally the Bishop, in his diocese, was clothed with 
the ultimate and exclusive power of government, and that 
this involved all judicial and all legislative authority, seems 
to the author the only doctrine consistent with the tenet of an 
Apostolic Episcopacy. 

At what period the clergy of the diocese were united in 
council, as a senate, with the Bishop — and when they arose 
from being mere advisers to coadjutors in the business of 
legislation, my information is not sufficient to state. The 
exercise of the judicial authority was restricted as early as 
the council of Carthage, when a Bishop was prohibited from 
hearing causes, without the presence of his clergy, and Igna- 
tius speaks of the clergy forming the Bishop's senate. 

The author is aware of the strong opposition which has 
been made to the position, and the necessary consequences of 



OF THE DIOCESES. 181 

the position he has stated, as to this original and exclusive 
power. It is with unfeigned humility he expresses the opin- 
ion, which, after no little examination and thought, he has 
formed, that this great and conservative doctrine is apostolic, 
primitive, and clear — that every thing of limitation upon the 
original jurisdiction of a Bishop has been self-imposed, or has 
sprung from the laws of councils of superior authority, and to 
which he was a party — that therefore in every case in which 
there is no express enactment, or legitimate conclusion from 
an enactment, to control it, the question is, where is the evi- 
dence of the surrender of the power to rule the Church ? If 
none can be produced, we have the Bishop's primitive jurisdic- 
tion to resort to for guidance and direction — a power without 
a shadow of claim to infallibility, but with an absolute claim 
to obedience. 

And if this doctrine had no higher demand upon our duti- 
ful assent, it would be recommended by the highest wisdom, 
as prudent and expedient. The system of our Church govern- 
ment is as liberal and free as any system can be which pre- 
tends to preserve an element of discipline. With the checks 
and restrictions in force — the watchfulness of clergy and 
laity — the power of public opinion — all brought to bear upon 
a Bishop, the imagination of his usurping authority and sub- 
stituting his will for the law, appears most visionary. On the 
contrary, the danger may now be lurking among us of Epis- 
copal authority being injuriously weakened or contemned. 1 

1 In speaking of Provincial Councils, Bishop Kennet says — Diocesan 
synods have a better title to antiquity. The Bishop of each diocese 
had an original right to convene his own clergy, and with their advice 
and consent, to ordain such rules and orders as were proper to declare 
the doctrine, and regulate the discipline of their own body. (Kennet, 
Ecc. Synods, vol. 2, 109.) 

The Bishop shall in every year hold a synod in his diocese of his- 
clergy and abbots, and shall select other clerics and monks. (Dec. Pars. 
1, Dist. 18, c. 16. 

The following is the language of Van Espen. It plainly appears- 



132 CONSTITUTION'S AND CONVENTIONS 

TITLE II. 
MEMBERS OF CONVENTIONS, AND THEIR QUALIFICATIONS. 

In order to class the members of the diocesan conventions 
in the most summary manner, and to show any important dif- 

that in the first ages of the Church, there were frequent conventions of 
the Bishops with their respective clergy, as if in a senate. These as- 
semblies were called Presbyteries, which at this day are termed Dio- 
cesan Synods. 

These meetings did not at first take place at any designate period; 
but whenever any important matters occurred, the Bishop convoked 
his senate, that they might deliberate upon them together. 

As to those who ought to assist at the synod, besides such as have 
the cure of souls, it is to be ascertained not only from the canons, but 
from the different customs of places." 

Qui Dicecesanis sub sancta Carolo interfuerint ex ejus ad clerum 
oratione in ejus Synodo XI. Dicecesani habita, colligere possumus — Ita 
enim ad Synodum loquitur. " Quid agimus fratres ? Synodum agi- 
mus; et quid Synodi nomen importat? Congregationem significat, 
atque conventum. Et quarum personarum ? Nempe adeo excellentium 
et eminentium in sancta Ecclesia ; Episcopi videlicit, et membrorum 
ei conjunctorum, Canonicorum Metropolitans hujus Ecclesiae, tunc 
etiam aliarum, Praepositorum, Parochorum, Sacerdotum, Clericorum." 

It seems that the power of calling all the clergy to these conven- 
tions was made a subject of abuse by the imposition of fines and pen- 
alties for non-attendance. This was remedied by a decree of the 
Council of Trent, admitting the clergy with cures, and some others, to 
send deputies. This system also prevailed in England, as the prece- 
dents before cited will prove. (Ante p. 135, n.) (Van Espen, Jur. 
Ecc. Und. Pars. 1 Tit. 18, cap. 19.) 

Again he says : — Porro constat undecim et amplius ssBcula univer- 
sum clerum jurisdictioni et regimini sui respective} Episcopi fuisse 
subjectum, nee unquam per ea tempora in questionem venisse, num 
clerici decretis Episcopomm in his quas morum et disciplines reforma- 
tionem attinebant essent subjecti, eisque obedire deberent; ideoque 
nee ambigebatur quin clerici omnes etiam Synodorum Episcopalium 
sanctionibus tenerentur iisque in omnibus se subjicere juberentur. 

He proceeds to show how, in subsequent ages, monks and others 
under the guidance of the Roman Pontiffs, asserted and attained ex- 
emption. 

The following is the language of Calvin : — Sequitur altera pars dis- 
ciplinac quae ad clerum peculiariter pertinet. Ea canonibus continetur 
quos sibi veteres Episcopi suoque ordini imposuerunt. Adjiciebantur, 



OF THE DIOCESES. 183 

ferences with the greatest brevity, I select an article of one of 
the constitutions, (Wisconsin,) which is drawn up with much 
perspicuity, and shall notice the correspondence or disagree- 
ment of others with it. 

et pcena? quibus ipsa canonum authoritas sanciebatur, nequis eos im- 
pune violaret. In hunc finem unicuique Episcopo committebatur cleri 
sui gubernatio, ut secundum canones suos clericos regeret, ac in officio 
retineret. (Calvivs Inst. Book 4. cap. 12. § 22.) 

Reference may also be made to the Reformatio Legum. (Be Eccle- 
sia } cap. 18 — 23.) The following is one of the passges : — Decreta vero 
illius et sententias vel in Synodo per ipsum, vel per Archidiaconum in 
visitatione divulgates, inferioies ministri ut validas et firmas retine- 
bunt. Quod si quid in eis vel injustum vel absurd um contineri arbi- 
tral fuerint, et ad Archiepiscopum deferent, cujus erit, ab Episcopo 
constitutum decretum ant sententiam, vel confirmare vel emendare, ita 
tamen ut qua parte ilia non correxerit Archiepiscopus. vigorem suum 
et robur retineant. 

The Lord Chancellor and the two Chief Justices of England, with 
the Chief Baron, declared in Bird vs. Smith, (Moory Rep. 723,) that at 
the common law. every Bishop in his diocese, and the Archbishops in 
convocation, could make canons to bind the clergy within the limits of 
their jurisdiction. 

It is true that Lord Hardwicke, in Middleton's case, denies this 
position. But he probably does not advert to the qualification that 
this was the rule at common law ; for I apprehend that it was the 
statute of William the Conqueror, and then of Henry the Eighth, which 
made the assent of the king necessary for the enactment of canons 
merely relating to spiritual matter. (Kennet, Ecc. Synods, 2d, p. 254.) 
With the qualification, that the Bishop must unite with his clergy in a 
synod, the proposition of Bird vs. Smith, appears to be true. 

The sixth chapter of the 4th book of Suarez dc Legibus is very full 
upon this subject. The struggle of the Romish writers is to reconcile 
the admission of a divine origin for Episcopacy, with the doctrine that 
all Bishops derive authority from the Pope. Many of them, and Suarez 
among the number, concede, that they are the successors of the Apos- 
tles, and thus in some sense the source of their power is of a divine 
nature, but always through the Pope, and in subordination to him. After 
speaking of the superior power of the Pope, Suarez says: — ci Bicendum 
igitur censeo, Episcopos habere potestatem legistivam in suis Bicecesibus 
jure ordinario humano, fundato aliquo modo in divino. 

Bishop Beveridge thus answers these advocates : " I confess myself 
utterly ignorant why or in what manner, a distinction should be drawn 
between an Apostolic and a divine right j and since the Apostles trans- 



184 CONSTITUTIONS AND CONVENTIONS 

The third article of this constitution, (1847,) " of the mem- 
bers of convention," provides as follows : 

The convention shall be composed of clergy and laity. The 
following clergymen shall be entitled to a seat in it : — 

Every clergyman, canonically connected with the diocese, 
and having charge of some parish within it ; or, officiating as 
a missionary within its bounds ; or, having spiritual charge 
as president, professor, tutor or instructor in some college, 
academy, or seminary of learning, countenanced or constituted 
by ecclesiastical authority ; or, being a chaplain in the navy 
or army of the United States. 

The lay members shall consist of not more than four dep- 
uties from each congregation in the diocese, in union with the 
convention ; a certificate of whose appointment shall be signed 
by either the minister of the parish, or one of the wardens, or 
the clerk of the vestry, and laid before the convention before 
his or their admission to a seat or vote. 

The union of clergy and laity in our diocesan 
§1. Union of aj J 

Clergy synods prevails in every diocese. It was shown in 

lAErr ' the first chapter, that this was made a fundamental 
principle in the organization of the General Convention, la 
this we differ from the convocations of the English and Scot- 
tish Church. Yet the principle which dictated it is found in 
the English decisions exempting the laity from the obligation 
of canons passed without their assent by representation, and 
is sanctioned by no less an authority than that of Hooker. In 
the Ecclesiastical Polity he says — "that in all societies, com- 
panies and corporations, what severally each shall be bound 
unto must be, with all their assents ratified. As the laity 



mitted the authority committed to them by Christ, to the Bishops, 
their successors, there seems to us nothing more agreeable to reason, 
nothing more necessary, than that this jurisdiction of Bishops over 
Presbyters should be referred to a divine institution." (Lib. 2, cap. 
1155 — 18 De Episcopis.) 



OF THE DIOCESES. 185 

should not hinder the clergy's jurisdiction, so neither is it 
reason that the laity's rights should be abridged by the clergy. 
(Book 8, p. 368, &o.) 

And a trace of this principle is found in monarchial 
governments. It was pointed out by Lord Hardwicke, in 
Middleton's case, 1 how the assent of the Emperor to Ecclesi- 
astical regulations bound the people ; and Van Espen states 
the same rule.* 

This provision as to clergymen canonically set- 
tled may be said to be universal. The language b ' ETTLEI> 

" . . Clergymen. 

indeed varies in different dioceses. Thus in North 

Carolina it is: "Each regularly ordained minister of either 
order, being settled with a parochial charge in this state ;" in 
Virginia, " the officiating ministers who now are or may here- 
after be regularly and canonically elected in parishes or 
churches in this state ;" in Pennsylvania, " being a settled 
minister of some parish within the state ;" in New- Jersey, 
" every Presbyter who has been duly instituted rector of any 
Church in the diocese ;" and in New- York, " the officiating 
ministers regularly admitted and settled in some church within 
this state which is in " union with this convention." 

In the year 1846, a full report was made to the conven- 
tion of Connecticut upon this subject. It came, it is pre- 
sumed, from the venerable Dr. Jarvis. It was proposed to 
amend the constitution of that diocese by striking out the ex- 
isting sixth article, and substituting the following: ;i The Con- 
vention shall be composed of the Bishop, his clergy, and lay 
deputies from the several churches of this diocese." 

In the report it was urged, that all the clergy of the 
Bishop without further qualification should be admitted to a 



'Atkyns. 

' [Tit. 20, ch. 4, 13.) Keque enim credunt Auctoritatem Episcoporum 
aut Ecclesiasticorum extenderet in his quae temporalia sunt laicis absque 
regio consensu legem ponunt. (Of Diocesan Synods, Tit. 20, ch. 4, 13.] 



186 CONSTITUTIONS AND CONVENTIONS 

seat. That this was according to the system of the early 
Church, in which Presbyters sat and deliberated with the 
Bishops in both consistorial and provincial councils and so as 
to deacons, who were sometimes allowed to give their voice 
in their own names. That the clergy sat not as representa- 
tives of parishes, or of seats of learning, or as missionaries, 
but by virtue of their office. That the clergy of the Bishop 
were those who had received orders from him, or his prede- 
cessors, unless under discipline which forfeited their right, or 
they had been canonical ly transferred ; and in like manner 
all who by letters dimissory accepted by the Bishop, were 
admitted under his jurisdiction. 

Ti) is report was accepted, and the alterations were at first 
adopted; but at the convention of 1847, the amendment was 
rejected. (See Journals of those years.) It was renewed, 
and again rejected in 1849. 

The principle of this report is adopted in the constitution 
of Missouri. By the third article every clergyman of the 
Church canonically residing in the diocese, and not under 
ecclesiastical censure, is a member of the Convention. 

In the convention of New-York of 1845, the composition of 
the convention both a» to clerical and lay members, was the 
subject of much discussion, and several propositions. Among 
them was one that the convention should be composed of all 
presbyters and deacons canonically connected with the diocese, 
and not under ecclesiastical censure, and of lay delegates, &c. 
On the other side it was moved that the clauses admitting 
missionaries, or professors, or instructors of youth should be 
stricken out. 

These propositions exhibit the extremes of opinion upon 
this subject. On the one side, the mere fact of a canonical 
connection with the diocese giving a right to every minister 
to a seat ; on the other a connection with a parish being in- 
dispensable. The latter has been pressed with some very 



OF THE DIOCESES. 187 

plausible considerations; yet it seems to me both unjust and 
unwise. It entirely destroys the principle of the primitive 
Church, that its ministers as such form part of the Synodal 
Council, a principle deviated from in the qualifications imposed 
upon those who have not a cure, but not overthrown. It 
would rob a convention of the learning and talent of a class 
of men fitted to supply that in which ordinarily the parochial 
clergy may be found deficient; but above all, it tends to 
weaken the clergy as a body in the convention, to impair their 
independence, and to bring them under the control of the laity. 
This I look upon as a great evil. The imagination of undue 
priestly influence in our country is the wildest of fancies. 
The fact is that the laity have almost absolute control over a 
clergyman, and they sometimes use it most mercilessly. It 
is within the power of one active, persevering, ill-minded man 
to drive from a parish anyone however fit and conscientious; 
and too often indeed is the wretched alternative presented to 
the victim of some crude notion of churchrnanship, or some 
hasty and cherished prejudice, of poverty or subservieney. 

It will be seen that deacons are in general admitted to 
seats as well as presbyters, if possessed of the prescribed 
qualifications. In New-Jersey the regulation is different, and 
I believe is not to be found in any other Constitution. By 
the 4th article, it is provided, that rectors elect, and deacons 
who belong to the diocese, and officiate statedly within it, are 
also admitted to seats, and may express their opinion on all 
subjects; but may neither vote, be appointed members of the 
standing committee, nor be elected deputies to the General 
Convention. 

Missionaries within the diocese are entitled to a 

§ 3. iiIS?IONA- 

seat by the provisions of every constitution which KII , S 
I have examined. 

The ecclesiastical authority referred to in this § 4 - P*©*ess- 
clause of the constitution of Wisconsin means no 



188 CONSTITUTIONS AND CONVENTIONS 

doubt that of the Church. A similar regulation exists in the 
diocese of Missouri. The professor, &c, must be connected with 
a college under the control of the Church. (Article 4, 1847.) 
But in several other constitutions this qualification is not to 
be found, neither in Connecticut, "Western New-York, New- 
York, or Maryland, where the clergyman may be a professor, 
&c, of any institution of learning incorporated by law. 

In Connecticut, however, the phrase in the constitution of 
the diocese, " any seminary of learning constituted by eccle- 
siastical authority," is held to mean all schools and semina- 
ries established with the authority of the Bishop. (Journal, 
1842, p. 13.) 

Chaplains of the army or navy, being ministers 

§5. Chaplains r ... 

™-a™ v *™ of tli e Church, are admitted to seats in Wiscon- 

OF ARMY AND ' 

navy. sin, Maine, Florida, and (with certain restrictions 

as to the time of residence) in Massachusetts. 
„ _ There is a provision to be found in several of 

§ 6. .Residence. * 

the constitutions requiring a previous residence in 
the diocese for a certain period. Thus in Pennsylvania, every 
member must have been actually, as well as canonically, 
resident within the state, for the period of twelve months pre- 
vious to the meeting of the convention, and for the same 
period been engaged in performing the duties of his station. 
An absence from the state on account of sickness, or an ab- 
sence not exceeding two calendar months in any one year, 
with the written permission of the Bishop, or of the standing 
committee in case of a vacancy, shall be taken in account in 
computing the said residence. 

In Connecticut the minister must have been actually, as 
well as canonically, resident within the state for the space of 
six calendar months next before the meeting of the conven- 
tion, and for the same period been employed in performing 
the duties of his station, or must have been ca nonically in- 
stituted. 



OF THE DIOCESES. 189 

There is also a provision in many of the dio- ^ p 0RMER 
ceses relating to clergymen who have once been members. 
members. I cite the language of the 4th Article of Penn- 
sylvania as an example : " Provided also that no clergyman of 
advanced years or infirm health, who has been once entitled 
to a seat in the convention, shall lose his right to a seat there- 
in by reason of his having ceased to have charge of a parish, 
or to be in the service of a seminary of learning, or to be a 
missionary as aforesaid." The provision in Connecticut is — 
"Provided, however, that no clergyman, otherwise entitled to 
a seat and vote in the convention, shall by reason of advanced 
years, or infirm health, or temporary absence, be divested of 
such privilege." And in Delaware — " No clergyman of ad- 
vanced years or infirm health, who has been once entitled to 
a seat in the convention, shall lose his right thereto, by reason 
of his having ceased from the active duties of his calling." 

Under the Article in Pennsylvania, a case occurred in 
1847 of the resignation of a clergyman of his parish charge on 
account of ill health. He recovered, and asserted his right to 
a seat in convention, without having formed any new con- 
nection with a parish, or being within either of the other 
enumerated classes. He was admitted, but under a strong 
minority report, taking the ground that the canon applied 
only to the case of a continuance of the infirmity, not to place 
one who was incompetent to a charge, in a better position 
than other non-parochial clergymen, merely from his once 
having been a member. 

The case is thus provided for in New Jersey — " Clergy- 
men who have formerly been rectors in this diocese, but 
having resigned their charges, remain in it, or return to it 
after a period of absence, may also become, and shall here- 
after be considered as members of the convention in full 
standing, provided all the instituted rectors present, and all 
the congregations represented at the meeting when any such 
13 



190 CONSTITUTIONS AND CONVENTIONS 

clergyman shall be proposed, give their votes in favor of 
it." 

In 1833-4, the Article was amended, so as to require only 
a concurrence of two-thirds of the clergy entitled to vote, and 
two-thirds of the congregation represented at the meeting. 

The provision in Maryland is this — " No clergyman who 
has once been entitled to a seat in convention shall lose his 
right to a seat therein, by reason of his having ceased on ac- 
count of age or infirm health to have charge of a parish, or to 
be in the service of a college, &c, or to be a missionary." 
And by the first canon, " no clergyman shall be entitled to a 
seat as an infirm clergyman, unless he shall produce a certifi- 
cate from some respectable physician that his state of health 
unfits him for the active duties of the ministry, and there be 
evidence that at the time his health became infirm, he was 
entitled to a seat in the convention." 

This provision shows that the decision in Pennsylvania 
would not be the rule in Maryland. 

S 8 Lay Dele- ^ s *'° ^ le numDer of the lay delegates, the regu- 

gates. Num- lations of the respective dioceses generally prescribe, 

berandqtjali- that there shall be one or more from each church or 

fications. parish Tbis is the casej for example, in New-York, 

Western New-York, and New-Jersey. 

In Virginia one delegate is to be chosen for each parish or 
church ; but if there is more than one officiating minister, the 
parish may send as many delegates as it has ministers. The 
regulation in Maryland and Kentucky is similar. 

In Wisconsin the number shall not exceed four ; in Ohio 
and Mississippi three ; in Missouri one at least ; in Maine one 
or more, not exceeding five ; and in Massachusetts any num- 
ber not exceeding three. 

In Connecticut each parish is entitled to one delegate, and 
if it consists of more than fifty families, to two. If any 
parish be composed of two or more congregations, having a 



OF THE DIOCESES. 191 

corresponding number of church edifices, such parish shall be 
entitled to a representation from each of such congregations. 

In some of the Dioceses a lay delegate must be a commu- 
nicant of the Church. This is the case in Virginia and Ohio. 

In South Carolina a resolution was adopted in 1841, re- 
spectfully recommending to the several churches in the diocese, 
that in the election of delegates they should choose persons 
who are regular communicants of the Church. 

In New- York, in 1802, a resolution was proposed that no 
lay delegates should be admitted to a seat in the Convention 
unless they were communicants. The following was unani- 
mously adopted in its stead : 

" That in the opinion of this convention the welfare and 
prosperity of the Church require, and it is in itself proper and 
right, that no lay delegates should be sent to this convention 
but such as are communicants of the Church, and have been 
so for at least one year previous to their appointment ; and 
that it is recommended to the several parties to adopt this 
principle." 

Considerable discussion took place upon the subject in the 
convention of Pennsylvania, in 1847. A resolution to amend 
the constitution had been submitted in 1846, so as to require 
that the delegates should be communicants. After full con- 
sideration the proposition was negatived. The vote was 45 
clergymen in favor, and 29 against it, and 34 laymen against 
it and 18 in its favor. 

The Bishop previous to giving his vote, which was in the 
negative, gave some reasons f«>r his course ; that he greatly de- 
sired the accomplishment of the object, but thought that the 
end was likely to be attained by means less stringent ; that 
the sudden and peremptory exclusion of non-communicants 
would leave some parishes without any representation — would 
cast out several exemplary members — and would impair the 
influence of pastors over many non-communicants who were 
kept from the table rather by pious scruples than indifFerence . 



192 CONSTITUTIONS AND CONVENTIONS 

In the Convention of New-York, in 1848, a committee ap- 
pointed at the previous convention submitted an alteration of 
the constitution, requiring the members to be communicants. 
This was adopted by a vote of the clergy 76 to 35, and of the 
laity 56 to 38. The amendment was laid over for the action 
of the next convention. 

In the Convention of 1849, the subject was largely and 
thoroughly discussed, and the proposed amendment was lost 
by a non-concurrence of orders. 

By a clause of the 2d canon of New-York, no one can 
be chosen a delegate from any church unless he is entitled 
to vote for its wardens and vestrymen. The same is 
the rule in Western New- York. (Canon 1, § 2.) In Penn- 
sylvania he must have been for six months previous to the 
election, a worshipper in the church or parish he is deputed to 
represent. In Massachusetts he must be a stated worshipper 
of the parish. 



TITLE III, 
EVIDENCE OF MEMBERSHIP. 

The revised canon of 1848 of the Convention of 
§ 1. List of 
clergy. New- York was prepared with great care by a 

committee, and is as follows : 

" It shall be the duty of the Bishop, or in case there be no 

Bishop, or of his inability or disability to act, then of the 

Standing Committee of the diocese, to prepare and submit to 

the convention at its next session, a list of all the qualified 

ministers of the Church, who at the time of the passage of 

this canon are regularly admitted and settled in some church 

within this diocese, which is in union with this convention, 

specifying the names of the several churches in which they 

are admitted or settled, which list shall be authenticated by 

the Bishop or Standing Committee, and after having been 



OF THE DIOCESES. 193 

submitted to the convention, (which may correct the same if 
inaccurate in any particular,) shall be recorded by the secre- 
tary of the convention in a book to be provided by him and 
kept in accordance with the third section of the XXX. Canon 
of the General Convention of 1832. 

" And it is hereby declared that in all cases hereafter 
arising of a contested right to a seat in the convention, of any 
minister claiming by virtue of any admission or settlement 
prior to the passage of this canon, the said list or record shall 
be taken as presumptive evidence of the right of those whose 
names shall appear thereon, and of the right of none others, 
liable however to be rebutted by other evidence satisfactory to 
the convention. 

" § 2. The secretary of the convention shall record in the 
book mentioned in the preceding section all certificates that 
shall be transmitted to him in pursuance of said 2d section of 
canon 30 of the General Convention of 1832. And in case of 
a contested right to a seat in the convention of any clergy- 
man who shall have been elected to any church or parish in 
the diocese after the passage of this canon, the evidence of 
settlement shall consist in the said record, or in the produc- 
tion to the convention of the certificate required by the said 
canon, together with a certificate of the Bishop, or of the 
Standing Committee, of his or their being satisfied that the 
person so chosen is a qualified minister of the Church. Which 
certificate, if not previously recorded, shall thereupon be re- 
corded by the secretary in the aforesaid book. 

" § 3. Every minister who may be received into this diocese 
after the passage of this canon, shall procure from the Bishop, 
or in case of his inability or disability to act, from a majority 
of the clerical members of the Standing Committee duly con- 
vened, a certificate that he has been received into this diocese 
in compliance with the canon of the General Convention. 
And before he shall be entitled to a seat in the convention, he 



194 CONSTITUTIONS AND CONVENTIONS 

shall cause such certificate to be recorded by the secretary of 
the convention in the book mentioned in the preceding sec- 
tion. And in case of the contested right to a seat in the con- 
vention of any minister who may be received into this diocese 
after the adoption of this canon, the production of such re- 
cord, or of such certificate, shall be presumptive evidence of 
regular admission — which certificate, if not previously re- 
corded, shall thereupon be recorded by the secretary in such 
book. 

" § 4. In case of a contested right to a seat in the conven- 
tion of a clergyman claiming the right by virtue of being em- 
ployed as a missionary under the direction of this convention, 
the evidence of such employment shall consist in the written 
certificate of the Bishop ; or in case of a vacancy in the Epis- 
copate, or of the inability or disability of the Bishop, in the 
written certificate of the chairman of the Missionary Com- 
mittee of the diocese. 

" § 5. In case of a contested right to a seat in the conven* 
tion of a clergyman claiming such right by virtue of his being 
engaged as a professor, or instructor of youth in a college, 
academy, or general seminary of learning, duly incorporated, 
the evidence of his connection with such college, academy, 
or seminary, shall consist in the written certificate of the 
president or secretary of such corporation, that he is so em- 
ployed." 

In a large number of the dioceses there is a provision 
similar to that in Western New York, which is as follows : — 
" The right of any clergyman of this diocese to a seat in the 
convention shall, if disputed, be determined according to the 
provisions of the third article of the constitution by the con- 
vention itself, whether his name be inserted in the list afore- 
said or omitted." 

In these cases the list which is made out is of course only 
prima facie evidence of a right to a seat, and presumptive 



OF THE DIOCESES. 195 

evidence that none but those included in it have a right. In 
New-Jersey the rule is as follows : " On or before the day of 
meeting of the convention, it shall be the duty of the Bishop, 
or if there be no Bishop, of the president of the Standing Com- 
mittee, to give to the secretary of the convention a certified 
list of the names of clergymen canonically resident in the dio- 
cese, specifying the instituted ministers and others entitled to 
seats and votes in convention." 

An article of the constitution defines who are to be entitled 
to seats in the convention. In Wisconsin the first canon runs 
thus : " On or before the first day of the meeting of the Con- 
vention it shall be the duty of the Bishop, or if there be no 
Bishop, of the president of the Standing Committee, to give 
to the secretary of the convention a certified list of the names 
of clergymen canonically resident in the diocese, and entitled 
to seats and votes in the convention." The ministers so enti- 
tled are enumerated in an article of the constitution. 

In Connecticut, Canon XI. provides, that " it shall be the 
duty of the Bishop and Standing Committee, or in case of 
vaeancy in the Episcopate of the Standing Committee, pre- 
vious to the meeting of any annual convention, to prepare an 
accurate list of the clergymen of this diocese entitled to seats 
in the convention, agreeably to the existing constitution and 
canons ; to be presented and read by the secretary before any 
other business shall be transacted ; and this shall be the list 
according to which the convention shall be organized." 

Considerable discussion has at different times taken place 
in New Jersey, as to the conclusive effect of the list made out 
by the Bishop upon a question of a right to a seat. It has 
been determined that it is final. 

The phraseology of the rule in Connecticut may perhaps 
settle the question in the same manner, upon the ground of ex- 
press enactment; although the right, I understand, is not 
claimed in that diocese, and the practice is otherwise. But 



196 CONSTITUTIONS AND CONVENTIONS 

in such cases as the provisions in New Jersey and Wisconsin 
present, it wears a very different aspect. When a Bishop 
of a diocese becomes a party to a compact by which a con- 
vention shall be formed, to be composed of clergymen and 
laymen, and in which the qualifications of those to be ad- 
mitted as members are stated, that assent involves an assent 
that the convention shall judge of the possession of those 
qualifications. There must be a positive enactment to avoid 
this consequence. The provisions in the two dioceses named 
do not amount to such enactment. The case is very distin- 
guishable from that elsewhere discussed, as to the right of a 
Bishop, as presiding officer, upon questions of order. The 
Bishops never relinquished the right of presidency. The con- 
stitutions always recognize, do not confer that right ; and 
that right, it is considered, involves the right of determina- 
tion, where there is no different regulation. But here the 
Bishop agrees to the establishment and composition of a body 
to which, presumptively, the privilege attaches of deciding 
upon its members' qualifications. There should be an express 
denial of the power, or an express bestowal of it elsewhere, to 
avoid this conclusion. 

The first canon of Maryland (1847) provides for the evi- 
dence of a title to a seat with great precision. 

1st. As to clergymen removing from another diocese into 
Maryland, none can be admitted to a seat as having been 
regularly and canonically elected into a parish or congrega- 
tion, unless it shall have been signified to the secretary of the 
convention by the Bishop, or in case of a vacancy, by the 
president of the Standing Committee, that he obtained from 
him a certificate of his Episcopal ordination and religious 
character, nor unless he shall have received from the vestry 
and transmitted to the secretary the certificate required by 
the 30th canon of the General Convention of 1832. 

The certificate referred to in the first clause is that which 



OF THE DIOCESES. 197 

is directed to be furnished by the fifth canon of 1844, on a 
removal from one diocese to another. 

2d. In the case of a clergyman canonically resident in the 
diocese, and elected into a parish or separate congregation, 
he shall immediately after his acceptance of the appointment 
transmit to the Bishop a certificate from the wardens and 
vestry of his election. 

The 30th canon of 1832 requires the vestry to deliver 
this certificate, and it is to be transmitted to the secretary of 
the convention. The canon of Maryland makes it the duty 
of the minister to cause it to be done. 

3d. A clergyman claiming a seat in the convention as an 
instructor of youth in any seminary of learning, must pro- 
duce a certificate from the rector and vestry, and if there be 
no rector, from the vestry of the parish in which it is situated, 
or of some separate congregation within such parish acknow- 
ledged as such by the convention, that he is so occupied. 

4th. No clergyman shall be entitled to a seat as an infirm 
clergyman, unless he shall produce a certificate from some 
respectable physician that his state of health unfits him for 
the active duties of the ministry, and there be evidence that 
at the time his health became infirm, he was entitled to a 
seat in the convention. 

By canon 13 of the Diocese of Pennsylvania, § 2. Evidence 
the appointment of lay deputies shall be certified ° F Lay-mem- 
in writing by a warden and two vestrymen of the BERSHIP - 
proper church, and the certificate shall state that the deputy, 
or each of the deputies named in it (if the certificate is for 
more than one) is, and has been for not less than six months 
before the time of his election, a worshipper of the Church or 
parish he is deputed to represent ; and no other certificate or 
evidence of the appointment of any lay deputy or deputies 
to the convention shall be allowed or received. 

In Massachusetts a certificate of the appointment of a 



198 CONSTITUTIONS AND CONVENTIONS 

lay delegate must be signed by the wardens or parish clerk, 
and laid before the convention. He must be a stated wor- 
shipper in the parish which he represents. 

In Kentucky the delegate must exhibit to the convention 
a certificate signed by the rector, or the secretary of the 
vestry, or by one of the wardens, certifying that at a regular 
meeting of the vestry of Church, held, &c, he was ap- 
pointed a lay delegate to represent the same in the conven- 
tion to be holden on, &o. 

In Ohio the regulation is the same. 

In New- York, by the canon of 1848, the evidence of 
the appointment of a lay delegate, if made by the vestry, 
shall consist in a written certificate, signed both by the rector 
of the church, if there be one, or if there be no rector, then by 
the warden who presides at the meeting at which such dele- 
gate is appointed, and by the clerk of the vestry. If the ap- 
pointment be made by the congregation, the evidence of such 
appointment shall consist in a certificate, signed by the same 
persons who are required by law to attest the election of 
wardens and vestrymen in the respective parishes. Every 
certificate of the appointment of a lay delegate shall show 
upon its face, that the appointment has been made in pursu- 
ance of all the requirements of the section ; and shall certify 
that the delegate has the qualifications required by the third 
article of the Constitution, and by the succeeding section of 
the canon. And no other certificate or evidence of the ap- 
pointment of any lay delegate than such as herein is required 
shall be allowed or received. 

The section referred to in the preceding provision declares, 
that no lay delegate shall be entitled to a seat in convention 
unless he be entitled to vote for wardens and vestrymen of 
the Church which he is appointed to represent. 

The Committee of Now- York, to which was referred in 
1845 the list of the clergy and credentials of the lay delegates, 



OF THE DIOCESES. 199 

reported, that with the exception of some eight or ten, there were 
none which might not be excepted to as insufficient in some 
particulars ; very few showed upon their face the authority by 
which the appointment was made, the qualification of the 
delegate, and the official station of the presiding officer. In 
many cases, the appointment is stated to have been " at a 
meeting of the wardens and vestrymen." Such meeting is not 
necessarily a vestry meeting, nor does it necessarily "appear 
that the appointment by such a meeting is an appointment 
by the vestry. The official title of clerk is one recognized 
and prescribed by the laws of the state as well as by the 
canon. The title of secretary is sometimes used. The secre- 
tary of a meeting of wardens and vestrymen may be a differ^ 
ent person from " the clerk of the vestry," and the canon 
designates the latter as a returning officer. 

These irregularities, it will be seen, were corrected by the 
canon adopted in 1848. 

There are some differences in the dioceses as to § 3. Mode of 
the mode of electing delegates, and the body from choosing Lay 

Which they are to be taken. Delegates. 

In Louisiana they are chosen by the vestry ; in Kentucky by 
the vestry from the congregation; (Canon 3,) in Missouri they 
are to be elected by the vestry or congregation, without specify- 
ing from what class ; (Art. 4, Const.,) in Ohio by the vestry 
from among the communicants of the church or congregation to 
be represented. The provision in Florida is like that in Mis- 
souri — the delegates are to be chosen by the vestry or con- 
gregation. The canon of South Carolina provides that lay 
delegates shall be elected by the respective Episcopal churches 
from among the members of those churches, to be elected in 
such manner and time as each church shall deem proper. 
(Const. Art. 3, § 4 ; Jour. 1847.) 

In Delaware they are chosen by the vestry, and if there is 
no vestry, by the congregation ; and the regulation in Maryland 
is the same. (Constitution, Art. 2.) 



200 CONSTITUTIONS AND CONVENTIONS 

In New-York, by Canon of 1848, § 6, the appointment of 
lay delegates to the convention, if they be chosen by the vestry 
of any church, shall be made at a regular meeting of such 
vestry held according to law : if they be chosen by the con 
gregation, the like notice of the time and place of holding the 
election shall be previously given, and the electors must have 
the like legal qualifications, and the election shall be conducted 
in the like manner, as prescribed by law for the election of 
wardens and vestrymen of the parishes respectively in which 
they are held. 

It will, be observed that by the constitution of New-York, 
the lay delegates are to be chosen by the vestry or congre- 
gation. 

By a canon of the same diocese a certificate of the incorpo- 
ration of the church under a statute of the state is necessary 
to be produced in order to a union with the convention; and 
by the same act wardens and vestrymen must be chosen upon 
incorporating a church. Again, the statute requires that the 
rector, if there is one, and a majority of the vestrymen, be 
present for the transaction of business. 

The congregation may then be called upon to appoint dele- 
gates, when from a vacancy, the vestry cannot be lawfully con- 
vened ; but it is not perceived in what other cases this power 
could be exercised by it. 



TITLE IV. 
OFFICERS AND COMMITTEES OF CONVENTIONS. 

§ l. Presiding By the 5th article of the constitution of Ncw- 
Officer— his York, the Bishop shall preside in the convention; 
uthority | 3U |- j n case f a vacancy^ or necessary absence, the 
and Duties. 

members shall elect a president irom among the 
clergy. In South Carolina the Bishop of the diocese shall be 
ex-offioio president of the convention, but in case of his ab- 



OF THE DIOCESES. 201 

sence or a vacancy in the Episcopate, the president of the 
Standing Committee shall be the president ; and if he be not 
present, a presiding officer shall be elected from among the 
attending presbyters. In Delaware the Bishop and Assistant 
Bishop, where there is one, whether belonging to the diocese, 
or having charge of it provisionally, shall have a seat and vote 
in the convention, and one of them shall preside. If there be 
none, the convention shall elect for its president one of the 
presbyters attending. (Journal, Delaware, 1844.) 

By the 2d article of the constitution of Kentucky, " the 
Bishop, clergy and representatives of the laity of the Church 
shall meet in convention." By the 4th article, " the Bishop, 
with such clergymen and lay delegates as shall at any time 
be duly assembled, shall constitute a quorum." By the 6th 
article, in case of vacancy of the Episcopate, or of the absence 
of the Bishop, the convention shall elect a president pro tern. 
by ballot, from among the presbyters. 

In Connecticut, the 4th article of the constitution provides, 
" that the Bishop shall preside in convention ; but in case of 
absence or vacancy in the Episcopate the convention shall elect 
a president pro temP (Journal, 1847.) 

The 5th article of the convention of Massachusetts, is, 
" that the Bishop shall preside in the convention; but in case 
of vacancy or necessary absence the members shall elect a 
president from among the clergy." (1847.) The 5th article 
of the constitution of Pennsylvania, and of Western New- 
York, and the provisions in Maine are substantially the same. 
(Journals, 1847.) 

In Maryland the regulation is this : (Article 6, Constitu- 
tion, Journal, 1847.) "The Bishop of the Church in this 
state shall be president of the convention. In case of a 
vacancy or absence, the convention shall choose by joint ballot 
a president from among the order of priests." In New- Jersey, 
the Bishop of the diocese shall have a seat and a vote in the 



202 CONSTITUTIONS AND CONVENTIONS 

convention, and shall preside at all its meetings. The Assistant 
Bishop, when there is one, shall have a seat and a vote, and 
in the absence of the Bishop shall preside. In case of a 
vacancy in the Episcopate, or of the absence of the Bishop, 
and of the Assistant Bishop, the members shall elect a presi- 
dent from among the instituted ministers. In Virginia, by 
the 6th and 7th articles, " the Bishop shall be the president 
of the convention ; in case of a vacancy the convention shall 
choose a president from among the order of priests." {Jour- 
nal, 1835.) 

These examples will suffice to show the general nature of 
the provisions in the dioceses. 

The right of a Bishop to preside in the council of his dio- 
cese is a fundamental law of the Church, and would exist 
without any provision to that effect. These provisions are 
but declaratory of the right. In Kentucky the right is 
assumed, not declared ; and in Virginia, it was recognized at 
a time when the power of a Bishop was narrowly restricted. 
By the 11th rule of order of 1785, the privilege of presiding 
in ecclesiastical assemblies was expressly admitted. This 
article remained until 1793, when the regulation was adopted 
in the form in which it now stands. * 

In a few of the dioceses there are some special regulations 
which require notice. In Delaware, the Bishop may at the 
close of the debate, and before a vote is taken, at his discretion 
express an opinion upon the subject. (Art. 5.) In South 
Carolina the Bishop or assistant Bishop, if there is one, is de- 
clared to be ex officio a member of the convention, with a 
right to vote on all matters requiring the suffrages thereof. 

By the 4th article of the constitution of Wisconsin, the 
Bishop, or the Bishop in charge of the diocese, shall ex officio 
preside in convention and be entitled to vote on all questions. 

By the 6th article of Maryland the Bishop shall be presi- 

1 Journals, 1785. 



OF THE DIOCESES. 203 

dent of the convention. He may make any motion which he 
shall judge conducive to the good of the Church, but shall not 
enter into debate ; and he may deliver his sentiments on any 
subject after it has been discussed before a vote thereon. He 
has a vote upon all questions. By the 4th article of the con- 
stitution of Pennsylvania, the Bishop and Assistant Bishop, if 
there be one, shall have a seat and vote in convention. In 
Louisiana the Bishop or president is entitled to a casting 
vote. 

It is to be noticed that all these declarations in the consti- 
tutions of the dioceses are merely declaratory of an inherent 
right, and do not create it. It would be an anomaly — it would 
not be a convention of an Episcopal Church, in which a Bishop 
was not recognized as entitled to preside and vote without a 
positive enactment. But the right which existed in former 
ages of a full negative upon the act of any diocesan synod or 
council, has been by the consent of the Bishops of our Church 
in almost all the dioceses, renounced. 

I know of but one partial exception to this. By the con- 
stitution of Kentucky, (Article 8,) should the Bishop express 
his disapprobation of any canon regulation or resolution, it 
shall be returned to the convention for reconsideration, when 
a majority of two-thirds of both orders shall be necessary for 
its adoption. The same was the regulation in Missouri ; (Art. 
8, Const, in 1843,) but it is changed as appears in the consti- 
tution printed in the Journal of 1847. 

In the larger number of the dioceses the power 

Power ow . 

Questions of of the Bishop as presiding officer upon questions of 

Order. orc [ er nas been specially regulated. Thus by the 
15th rule of order of Maryland ; " all questions of order shall 
be decided by the president. There shall be a right of appeal 
from the decision of the presiding officer to the convention." 

In 1844, a resolution was offered that the name and style 
of all official signatures upon the Journals of the Convention 



204 CONSTITUTIONS AND CONVENTIONS 

should be in accordance with the constitutional and legal name 
of the Church, which is that of the Protestant Episcopal 
Church in Maryland. 

The Bishop declared the resolution to be out of order, as 
pertaining to a matter not within the cognizance of the con- 
vention, to wit, the official signature of the Bishop. An ap- 
peal was taken, and the decision sustained. 

The usual official signature is, I believe, " W. M. W., 
Bishop of Maryland." 

A similar provision to that in Maryland, viz., a right to 
decide questions of order with a right of appeal to the conven- 
tion, is in force in New Hampshire, (Rule 3, 1847,) Missouri, 
(Rule 12,) South Carolina, (Rule 22,) Virginia, (Rule — ,) 
Massachusetts, (Rule 9, 1847,) Rhode Island, (Rule 7, 1847,) 
Kentucky, (Rule 13,) and Indiana, (Rule 17, 1847.) 

In South Carolina, in the Convention of 1844, the Bishop 
refused to receive certain resolutions offered to the House. 
The question of reception was demanded and carried in the 
affirmative. The Bishop then stated that he desired to be 
considered absent, and called the president of the Standing 
Committee to the chair. The resolutions were read, and by 
a vote of the convention laid upon the table. (Journal 1844, 
page 38.) 

The rule in Louisiana is, that the Bishop shall have all 
the powers of presiding officers in deliberative assemblies to 
preserve order and decorum, and shall decide all questions of 
order subject to an appeal to the house. (Rule of Order, 
1844.) The provision in Western New-York is in the same 
terms. (Canon 2, § 3, 1847.) 

In New Jersey the Rule of Order is — " in any controversy 
respecting order, the president shall decide." (Rule 5, Jour- 
nal 1847.) 

Under this rule the Bishop of New Jersey exercises the 
right of decision without appeal, and attempts have been 



OF THE DIOCESES. 205 

repeatedly made to vary it by inserting a clause giving 
the right. The argument has been, that the convention is 
the creature of the constitution, and that its proceedings and 
officers ought to be controlled by the constitution or its own 
authority and the usages of deliberative bodies. In the con- 
vention of 1849 the subject was renewed, and there was a 
failure of a concurrent vote, the laity by a considerable ma- 
jority favoring the change in the rule. 

There are a number of dioceses in which this question 
would arise in its naked form. Thus, in Georgia, North 
Carolina, Delaware, Connecticut, Florida, Michigan, and 
Wisconsin, down to 1847, there was no specific rule upon the 
point, the Bishop in each being of course the presiding officer, 
and being usually declared to be such ex officio. 

In these cases it is submitted, that the power of the 
Bishop is final. It was before observed that the right of pre- 
siding essentially attaches to his office ; that there could not 
be a diocesan convention without the Bishop at its head. 
Where there is one, that ri^ht involves the riaht of deter- 
mining questions of order, both because it belonged to Bish- 
ops as the heads of synods before, and upon general principles. 
That power, therefore, must be restricted by express regula- 
tion, to which the Bishop is a party. The expediency of giving 
an appeal to the convention is a different question, on which but 
little difference of opinion exists, at least among laymen ; and 
it has received the sanction of the larger part of the dioceses. 



Another officer provided for in the several con- 
stitutions is a secretary. The 5th article of the ^ " 

TARY OF 

constitution of Kentucky, for example, provides : (j ONVENTION 
1. " A Secretary shall be chosen upon the assem- 
bling of the annual convention from the members thereof, by 
ballot, after viva voce nomination of candidates. In case but 
one is nominated, the balloting shall be dispensed with," 
14 



206 CONSTITUTIONS AND CONVENTIONS 

2. " The duty of the secretary shall be to take minutes of the 
proceedings of convention, to preserve the journals and records, 
to attest the public acts of the convention, to perform such 
other duties as shall be assigned to him by this constitution, 
or by canon made under its authority ; and faithfully to de- 
liver into the hands of his successor, all books and. papers 
relative to the concerns of the convention which may be in his 
possession." (Const. 1847, Art. 3.) 

This is an outline of the provisions of the other dioceses 
as to this officer. There are, however, additional regulations 
in some, deserving of notice. 

In New-York the secretary is to remain in office until the 
meeting of the next convention. He is also to give due notice 
to each minister and vestry of the meeting of the succeeding 
convention ; (Constitution, Art. 6,) and by the 5th Canon it is 
declared that he shall be chosen by ballot after viva voce nomi- 
nations of the candidates, and shall continue in office until a 
new election is made. 

§ 2. He shall transmit annually to^each of the Bishops of 
the Protestant Episcopal Church in the United States, and to 
the secretary of the last House of Clerical and Lay Deputies in 
the General Convention, and to the secretary of every Diocesan 
Convention, a copy of the Journal of the Convention ; and 
shall request the last to send copies of their respective jour- 
nals in exchange. 

§3. He shall also transmit to every General Convention, 
(in addition to the documents mentioned in the 3d section of 
the 7th canon of the General Convention of 1835 — Canon 8 
of 1841,) a certificate to be signed by himself, containing a 
list of the clergymen in this diocese, and the amount of funds 
paid or secured to be paid (distinguishing them) to the Gene- 
ral Theological Seminary, together with the nomination of 
trustees of that seminary, and also a like certificate of the 
appointment of clerical and lay deputies. 



OF THE DIOCESES. 207 

$4. Any expense incurred by a compliance with the third 
section of this canon shall be paid out of the diocesan fund. 

$ 5. Whenever there shall be a vacancy in the office of 
secretary of the convention, the duties thereof shall devolve 
upon the assistant secretary if there be one ; if not, upon 
the secretary of the Standing Committee. 

The secretary is also directed by Canon 3 of the diocese 
of New- York, to give notice of the time and place of a meet- 
ing of any convention by an advertisement signed by him, 
and published in three of the public papers, or Church journals 
printed in the diocese of New- York. When a special Con- 
vention is called for any particular purpose, the notice must 
specify such purpose. By the 8th section of the Canon of 
September, 1848, it is made his duty to transmit a copy of 
the 6th and 7th sections of that canon, together with blank 
printed forms of a certificate of the appointment of lay dele- 
gates to every church in the diocese in union with the con- 
vention, in the same manner with the notice, which by the 
constitution he is or may be required to give of the time and 
place appointed for the meeting of the succeeding convention. 
The 3d article of the constitution requires him to give notice 
to each minister and vestry of the time and place appointed. 



§ 3. Treas- 

The 6th canon of New- York provides as follows : urer. 
§ 1. At every stated convention, there shall be chosen by 
ballot a treasurer of the convention, who shall remain in of- 
fice until the next stated convention, and until a successor is 
appointed. It shall be his duty to receive and disburse all 
monies collected under the authority of the convention, and of 
which the collection and distribution shall not be otherwise 
regulated. 

§ 2. His accounts shall be rendered annually to the con- 
vention, and shall be examined by a committee acting under 
its authority. 



208 CONSTITUTIONS AND CONVENTIONS 

§ 3. In case of a vacancy in the office of Treasurer, it shall 
be supplied by an appointment to be made by the Standing 
Committee ; and the person so appointed shall continue to 
act until an appointment is made by the convention. 

The 8th canon of the diocese of Illinois, and the 12th of 
Ohio, are the same in substance. 

The 10th canon of Missouri, in addition to the powers and 
duties above mentioned, declares, that the treasurer shall be 
subject to the direction of the Standing Committee in rela- 
tion to the mode and place of depositing the funds received 
by him, and the mode of paying them out, and his accounts 
and books shall be at all times subject to the inspection 
of the Standing Committee, or any member thereof. Before 
entering on the duties of his office he shall give a bond to the 
Standing Committee, in such penalty and with such surety as 
they shall direct, conditioned for the faithful performance of his 
duties, and for delivery over to his successor of all funds, se- 
curities, books and papers pertaining to his office. 



[Canon IV., General Convention, 1832.] 
§ 4. Standing § 1- I n every diocese there shall be a Standing 
Committees. Committee, to be appointed by a convention 
thereof, whose duties, except so far as provided for by 
the canons of the General Convention, shall be prescribed by 
the canons of the respective dioceses. They shall elect 
from their own body a president and secretary. They may 
meet on their own adjournment from time to time ; and the 
president shall have power to summon special meetings when- 
ever he shall deem it necessary. 

§ 2. In every diocese where there is a Bishop, the Stand- 
ing Committee shall be a council of advice to the Bishop. 
They shall be summoned on the requisition of the Bishop 
whenever he shall wish for their advice : and they may meet 
of their own accord, and agreeably to their own rules, when 
they may be disposed to advise the Bishop. 



OF THE DIOCESES. 209 

^> 3. Where there is no Bishop, the Standing Committee 
is the ecclesiastical authority for all purposes declared in 
these canons. 



The first provision was the seventh canon of July, 1789, 
directing that in every state in which there is no Standing 
Committee, such committee should be appointed at its next 
ensuing convention. The canon of 1795 was the same. The 
4th and 24th canon of 1808 comprised the same regulations 
as the first two sections of the present canon, except the 
clause prescribing the duties of the committee. 



In the first ages of the Church, the presbyters 

• Origin. 

who had a cure of souls constituted as it were but 

one body, and formed, together with the Bishop, a senate. 
Ignatius calls this body the Sacred Consistory, the counsel- 
lors and assessors of the Bishop. "We have in the Church," 
says Hieoronymus, " our senate, the assembly of presbyters." 

But as the number of presbyters and clergymen largely 
increased, the Bishops began to choose from the clergy cer- 
tain persons by whose council and advice they might govern 
the diocese, and these were called the cathedral canons, as 
attached particularly to the Episcopal cathedrals, and their 
assembly was called the Cathedral Chapter. 1 

The power of the chapter was in its origin and institution 
entirely subordinate to that of the Bishop.' 2 When Cyprian 
writes, that from the commencement of his Episcopate he 
had determined to do nothing without the counsel of the 
clergy and consent of the people, [sine consensu plebis,) it is 

1 Van Espen, Jur. Eccl. Un., Pars. 1, Tit. 8, cap. 1 j Tome 1, p. 42. 
See also Suarez' Be Legibus, Lib. 4, cap. 6. 

\ Totius cleri Episcopum caput esse, eique prcecipuam agendo rum in 
sua Dioecesi curam incumbere indubitatum est. (Ibid. cap. 2.) Sine 
Episcopo nemo quidquam faciat eorum quae ad Ecclesiam spectant. 



210 CONSTITUTIONS AND CONVENTIONS 

obvious that this was a voluntary restriction upon his un- 
questionable power. 

Some limitations are also to be found in the provisions of 
General Councils. These were generally binding. Of this 
nature, particularly, was the provision for the concurrence of 
the chapter in the trial and decision of causes. Van Espen 
refers to that of the Council of Carthage — Ut Episcopus nul- 
lius caasam audiat absque presp.ntia suorum clericorum. 

The Popes also imposed other trammels, in pursuance of 
their design of breaking down the independence and authority 
of the Bishops. Pope Alexander the Third forbade the institu- 
tion or dismissal of abbots and other ecclesiastical persons, 
without the assent of the chapter. 

The modern doctrine was well expressed in a decree of 
Cardinal Pole. (De Ref. Cleri. Anglicani.) " Canonicatuum 
et Prcebendarum instituendi et rationem et causam hanc 
fuisse, utqui ad eas assumuntur Episcopo assistant, eumque 
in muneris sui functionis consilio et opera adjuvent, in divU 
nis celebrandis Ecclesice inserviantP 

The description of a chapter in the English law is this : 
"A chapter of a cathedral church consists of persons eccle- 
siastical, canons, and prebendaries, whereof the Dean is chief, 
all subordinate to the Bishop, to whom they are as assistants 
in matters relating to the Church, for the better ordering and 
disposing the things thereof, &c, and they are termed by the 
canonists, capitulum, being a kind of head instituted not only 
to assist the Bishop in manner aforesaid, but also anciently to 
rule and govern the diocese in time of vacation. The Dean 
and chapter is a body corporate spiritual, consisting of many 
able persons in law, viz., the Dean, who is chief, and his pre- 
bendaries ; and they together make the corporation. They 
were originally selected from among the clergy by the Bishop, 
as counsel and assistants to him." 1 

1 Godol. 56, 58. 2 Roll. abd. 451. Bunbury Exch. Rep. 209. 



OF THE DIOCESES. 211 

It appears that by the concession, or weak acquiescence of 
Bishops, the chapter in many cases stepped beyond the natu- 
ral and legitimate functions of its office, and exercised au- 
thority and claimed exemptions inconsistent with a canonical 
subordination. The nature and extent of these encroach- 
ments will be found in Burns' Eccl. Laws, vol. 2, p. 93, and 
the authorities there cited. 1 

I have not found that during the colonial period any com- 
mittee of this character was in existence, except that in Con- 
necticut in 1776, (June 4,) there was a committee of five 
clergymen appointed by a convention. In the acts of the 
commissaries, and perhaps in the voluntary regulations of the 
clergy in conventions, is to be found whatever of internal, 
positive ordinance was enacted for the Church. 2 

But after the Revolution, and at the period of the adop- 
tion of the canons of 1789, a body called a Standing Com- 
mittee is to be found in several of the states. 

In Virginia, for example, by one of the rules and orders for 
the government of the Church, passed in May, 1785, a Stand- 
ing Committee was appointed. It was to consist of four 
members, and by a resolution of the convention three clergy- 
men and one layman were appointed. Its powers were con- 
siderables—among others, to receive complaints against the 
clergy and direct courts of examination. 3 

In Maryland, in 1788, a Standing Committee, composed 
©f five clergymen and five laymen, was established for each 
shore ; and all matters of government and discipline during 
the recess of the convention were assigned to them. 

And in New- York, in 1787, a committee was appointed 
to call a special convention should the Episcopate become 

1 1 Burrow's Rep. 567. Rolls. Abr . 229. 

2 Hawks' Contr. vol. 2, p. 170, and Appendix, p. 501. Soma notices 
of the convocations are to be found in Chandler's Life of Johnson. 

• Hawks, vol. 1, 303. 



212 CONSTITUTIONS AND CONTENTIONS 

vacant, and by another resolution the same gentlemen were 
to compose a standing committee, to advise with the Bishop 
in all matters in which he might think proper to consult them. 
There were three clergymen and three laymen appointed, 1 
This committee was continued the next year, and in 1790 
there was a regular election of members, viz., four of each 
order. 2 

These bodies then arose, in fact, from the necessities of 
the Church, and were the organs of government, where there 
was no Bishop, during the recess of the convention ; and this 
may account for the 6th canon of 1789 appearing to refer to 
them as already known in the Church system. 3 

It is believed, that, with the exception of Mary- 

Members. 

land and Connecticut, the standing committee of 
every diocese is composed of clerical and lay members. It 
appears, from the prefatory note to the edition of the journals 
of Connecticut, published in 1842, that the first standing com- 
mittee was chosen by the convocation in October, 1790. No 
convention was formed until 1792. The committee chosen in 
1790 consisted of five clergymen. The constitution of 1792 
provided for the appointment of a standing committee annu- 
ally. By the constitution at present in force, it is to consist 
of five clerical members, who shall be rectors of parishes or 
instructors of some seminary instituted by the ecclesiastical 
or civil authority of the State. 

In Maryland, by the 9th article of the constitution, a 
standing committee, consisting of seven members, four on the 
Western and three on the Eastern shore, shall be chosen from 
among the order of priests, by a joint ballot of clergy and 
laity. 

In general, the provision as to this committee is like that 

1 Journal. 1787. 2 Ibid, 1790. 

3 See a note of Dr. Hawks' Con. and Canons 102, and his quotation 
from a pamphlet written by the present Bishop Hopkins. 



OF THE DIOCESES, 213 

of the diocese of New- York, which is as follows: — "At every 
stated convention, an election of a standing committee shall 
be made, which committee shall consist of four of The clergy 
and four of the laity, to be chosen by ballot, and by the con- 
current vote of the members of each order." In New-Jersey 
each order chooses its own members, by ballot, subject to the 
approval of the other order. (Art. 10, Const. New-Jersey.) 

By the regulation of most of the dioceses, the members 
are equally divided between the two orders. Thus, in Ver- 
mont, there are three clergymen and three laymen. In Mis- 
souri, there are three presbyters and two laymen ; in North 
Carolina, a majority must be clergymen; in Delaware and 
Kentucky, three clergymen and two laymen, and the presence 
of two clergymen is necessary to form a quorum : and in 
Florida there are to be five laymen and four clergymen. 1 

In the dioceses of Wisconsin, Illinois, North Carolina, and 
South Carolina, the lay members must be communicants. 

The powers and duties of a standing committee 

arise from three sources : 1st, the delegation of a 

3 Duties. 

specific duty or power by the general convention : 

2d, a general authority conferred by the same : and, 3d, the 

duties prescribed and authority given by the laws of the 

respective dioceses. 

1st. The General Convention authorizes the committee to 
elect a president and secretary from their own body ; to meet 
on their own adjournment from time to time: to assemble at 
special meetings upon the summons of the president ; and to 
meet of their own accord when they may be disposed to advise 
the Bishop. {Canon 4, 1832.) By the same canon, they may 
be summoned, and are bound to meet, upon the requisition of 
the Bishop, when he wishes their advice. 

The numerous cases in which special duties are enjoined, 

1 In the Convention of 1848, T find but three clergymen and five lay- 
men chosen. 



214 CONSTITUTIONS AND CONVENTIONS 

and powers are conferred, by the canons, are stated, under the 
appropriate heads, in various portions of this work. Among 
their important powers is that bestowed by the Canon 15 of 
1832, (the substance of which was enacted in 1789,) by which 
no person can be ordained a deacon or priest without testimo- 
nials from the committee. 

2d. It is next to be noticed, that, by the third section of 
the Canon of 1832, where there is no Bishop in a diocese, the 
committee is the ecclesiastical authority for all purposes de- 
clared in the canons, that is, the canons of the General Con- 
vention. 

This power is of much importance, and deserves special 
notice. What are the purposes declared in the canons for 
which the committee forms the ecclesiastical authority? 

In 1841, a committee of both houses made a report upon 
the subject, under a resolution referring it to them to define 
the provision. They stated, that in Canon 4 of 1832, § 3, 
which is, that where there is no Bishop, the standing com- 
mittee is the ecclesiastical authority for all purposes declared 
in the canons, it is implied that the Bishop, where there is 
one, is the ecclesiastical authority, unless otherwise declared 
in a canon; that in Canon 10 of 1832, the words, "or other 
ecclesiastical authority which may have the superintendence 
of candidates for orders," mean the clerical members of the 
standing committee, where there is no Bishop ; that in Canon 
17 of 1832, " Of Deacons," it means the clerical members of 
the committee, where there is not a Bishop ; in Canon 19 of 
1832, " Of the Titles of those who are to be Ordained Priests," 
the Bishop, or the standing committee at large, is intended ; 
and that in Canon 23 of 1832, (now superseded by the 9th of 
1844,) " Of Clergymen Ordained in Foreign Countries by 
Bishops in Communion with this Church," was meant the 
standing committee generally, when there was no Bishop. 
This is the case under the existing canon. 



OF THE DIOCESES. 215 

The preceding expositions were adopted by the convention, 
after which the subject was laid on the table. 

The same committee also reported, that in Canon 33 of 
1832, the phrase occurring twice meant the Bishop and the 
clerical members of the standing committee. This canon 
relates to the dissolution of the pastoral connection between 
ministers and their congregations. 

It is not seen how the phrase can, in this instance, be so 
interpreted. The committee and the convention agree that, 
by the phrase " ecclesiastical authority," the Bishop, where 
there is one, is implied ; and, by the canon, the standing com- 
mittee generally is such authority, where there is not a Bishop. 
The phrase, when used without qualification, certainly means 
the Bishop, or standing committee proper. 

In addition to the canon of the General Convention, there 
is an express provision in several dioceses upon the powers of 
the committee. In Pennsylvania, the 9th canon of 1829 is as 
follows : " In case of a vacancy in the Episcopate, the powers 
and duties to be performed by the Bishop, as regards disci- 
pline, except the pronouncing sentence of deposition, or de- 
gradation, shall belong to, and be performed by the Standing 
Committee. In case of such vacancy, the committee shall 
also have power to act in the granting of testimonials to cler- 
gymen removing into this diocese. " 

The 7th article of the Constitution of "Wisconsin (1847) 
provides, " that the Standing Committee, where there is no 
Bishop, or he is incapable of acting, shall be the ecclesiastical 
authority of the diocese for all purposes declared in this Con- 
stitution." The eleventh canon of Illinois, and the tenth of 
Western New- York are as follows : " In case of a vacancy in 
the Episcopate, the powers and duties to be performed by the 
Bishop in matters of discipline, shall be performed by the 
Standing Committee, except in those cases in which such 
powers and duties are or may be specially delegated to or enjoin- 



216 CONSTITUTIONS AND CONVENTIONS 

ed upon the clerical members of said committee, in which 
case such powers and duties shall be exercised by said cleri- 
cal members alone ; provided that no sentence shall be pro- 
nounced upon a clergyman but by a Bishop." 

The canon in New- York, previous to the convention of 
1845, was precisely the same. That convention added, after 
the words, " vacancy in the Episcopate," the words, " or the 
inability or disability of the Bishop." 

Now the power of a diocese to pass such a canon is unde- 
niable. The strict constructionist, who limits the phrases, 
" vacancy in the Episcopate," " where there is no Bishop," 
and " without a Bishop," to their literal acceptation, finds a 
case omitted to be provided for by the General Convention, 
provided for here. The general canon itself has recognized 
the right of the diocesan conventions to prescribe the duties of 
the committee, except where prescribed by the General Con- 
vention. On the other hand, they who approve of the extend- 
ed construction put upon these words by the Standing Com- 
mittee of New- York in 1845, find in this action a recognition 
and confirmation of their interpretation, as far as relates to 
cases under the general canons, and a full express authority 
in all cases of discipline, under the constitution or canons of 
the diocese. 

It is well known that in the unfortunate situation in 
which the Diocese of New- York was placed by the suspension 
of Bishop Onderdonk, the Standing Committee assumed the 
conduct of the business of the diocese to a great extent. In 
this they were supported by a vote of the Diocesan Conven- 
tion, and the above alteration was made in the canon, " to 
strengthen the committee, and make it more clearly their 
duty to act in the manner proposed in the existing emer- 
gency." (Report of the Committee of the Convention^ 

The course of reasoning by which the committee sus- 
tained their action will be found at length in a report of a 



OF THE DIOCESES. 217 

sub-committee printed at page 36 of the Journal of 1845. 
The conclusions were that Bishop Onderdonk was still the 
Bishop of the diocese, and that no other Bishop could be elect- 
ed in his place ; and yet that there was such an entire inhi- 
bition upon the exercise of his powers, as let in the authority 
of the Standing Committee, from the necessity of the case, 
and upon the doctrine of a constructive vacancy, for the pur- 
pose of government, not for any other. 

It may be, at least, plausibly urged, that the action of the 
General Convention of 1847 decided that the sentence of sus- 
pension did not vacate the jurisdiction of the Bishop ; but if 
this is disputable, at least it is clear that as a sentence must 
now be terminable on its face, the avoidance could not take 
place. 1 

The same question, then, which was agitated in New- 
York, might arise in almost every diocese except Wisconsin. 
The views which were taken by some of the Right Reverend 
Bishops, that the Standing Committee had no power in the 
premises, will be found cogently set forth in a letter of Bishop 
Doane to the Committee, in the Journal of New- York in 1845. 
On the other side, those who treated the sentence as entirely 
equivalent to a deposition, had no difficulty ; and of this opin- 
ion was, as is understood, Bishop Freeman of Delaware, who 
recognized the action of the committee. The venerable pre- 
late of Connecticut, after much deliberation, adopted the same 
course, but not upon the same principle. His letters con- 
taining the exposition of his views are to be found in the New- 

1 Bishop Elliott of Georgia, in his address to the Convention of 1848, 
says, that the General Convention had decided, and justly in his opin- 
ion, that the jurisdiction of a Bishop was not voided by a sentence of 
indefinite suspension, and while a canon was passed requiring that in 
all future cases where the penalty of suspension was inflicted, that it 
should specify terms and limits to the sentence, provision was made 
for the particular case which brought up the discussion of these prin- 
ciples. 



218 CONSTITUTIONS AND CONVENTIONS 

York Journal of 1845. It will be noticed that the language 
of the Bishop is — " that he considers the Episcopal powers of 
the Bishop of New-York as fully suspended, and in a state of 
entire abeyance ; and that in respect to their exercise, there 
is a virtual vacancy of the Episcopate. Under these circum- 
stances, I am of opinion, after mature deliberation, that the 
Standing Committee may rightfully execute all the powers 
which would devolve upon them during an actual vacancy in 
the Episcopate ; and that they will be justified in so doing, as 
well by the general spirit of our Church organization, as 
by the urgent necessity of the case." {Letter 20th May, 
1845, p. 32.) In his letter of the 10th of April preceding, 
the Bishop had said, that, " in his opinion, the exigency had 
not arisen when the Standing Committee becomes, according 
to the constitution and canons of the Church, 'the ecclesi- 
astical authority of the diocese ' — -that is, the diocese of New- 
York was not ' without a Bishop.' " 

The result of these matured opinions certainly goes far to 
sustain the standing committee in their course of action, and 
upon their own reasoning. 1 After the resolution and change 
of the canon of New- York, in 1845, it is believed that no 
Bishop of the Church had scruples in recognizing the autho- 
rity of that body. 

1 I cannot forbear stating a very high authority in the Church upon 
this question, which was not adverted to in the discussions upon the 
subject. Bishop Stillingfleet, in his letter on the right of jurisdiction, 
during the suspension of the Archbishop of Canterbury, in 1689, dis- 
cusses the question, whether the authority had devolved upon the Dean 
and Chapter. After showing that, in case of a legal vacancy, the right 
belonged to them, he says : — " The canonists make the case to be the 
same in an interpretative as in a real vacancy. Parnormitan lays 
down this for a rule — Episcopo mortuo naturaliter vel civiliter capitu- 
lum succedit in jurisdictione tarn spiritualium quam temporalium. He 
notices a decretal, settling the question in case of captivity, and quotes 
the following gloss: — Et sic nota quod sicut capitulum cum vacat Ec- 
clesia supplet vicem Episcopi in jurisdictione, sic et cum quasi vacat. " 



OF THE DIOCESES. 219 

This resolution was, that " until effectual and permanent 
provision be made for the supply of Episcopal services, the 
standing committee shall continue, in its own name and au- 
thority, to invite the performance of such Episcopal acts for 
or within the diocese, as may be necessary, by Bishops of the 
Church." 

Then, by the 4th canon of the General Convention in 1847, 
any Bishop, assistant Bishop, or missionary Bishop, may, on 
the invitation of the convention or the standing committee of 
any diocese, where there is no Bishop, or where the Bishop is 
for the time under a disability to perform Episcopal offices by 
reason of a judicial sentence, visit and perform Episcopal 
offices in that diocese, or in any part thereof; and this invi- 
tation may be temporary, and may at' any time be revoked. 

The cases in detail, in which the powers of a standing 
committee may be exercised, both in conjunction with a 
Bishop, and where there is none, will be stated in their pro- 
per places throughout the work. 

3d. With respect to the powers specially conferred upon 
the committee by the canons of the respective dioceses, they 
will be found under various heads in the ensuing part of the work. 



In several of the dioceses there are committees 

§ 5. Commit- 

appointed for some purposes which may be briefly TEES 0THEE 

noticed. thax Stand- 

In New- York, for example, the missionary ope- mG CoMMIT - 

TEE. 

rations of the diocese are conducted by a committee 
of the convention, chosen by ballot, consisting of ten members 
of the Church within the diocese, one-half of whom shall be 
clergymen, and the other half laymen, who, with the Bishop 
or Bishops of the diocese, shall compose a Board, to be called 
" The Missionary Committee of the Diocese of New- York," 
who, as agents of the convention, shall have the distribution 



220 CONSTITUTIONS AND CONVENTIONS 

of all funds which may be raised for the support of mission- 
aries in the diocese. 

The Bishop shall be ex-officio President, and shall have 
the sole power of nominating missionaries for appointment by 
the committee. In case of a vacancy in the Episcopate, or of 
the inability or disability of the Bishop to act, any member of 
the committee shall have the right to nominate. 

So, in Florida, by the 6th canon, a diocesan missionary 
committee is established, consisting of all the clergymen 
canonically resident in the diocese, and of four laymen resid- 
ing in the same parish, to be elected by the convention. 

The operations were conducted under the direction of the 
ecclesiastical authority, there being no Bishop in Florida in 
the year 1847. 

Similar committees are appointed in many other dioceses, 
such as in Massachusetts, Western New- York, and Rhode 
Island. 

In Rhode Island, by a canon passed in 1847, a Board of 
Commissioners for the building of churches was established. 
It consists of four laymen and the Bishop, who shall always 
be the chairman. The laymen are appointed annually, by a 
vote of the convention. 

So, in Georgia, the convention shall appoint annually, by 
ballot, a committee of two clergymen and three laymen, of 
which committee the Bishop of the diocese, when there is one, 
shall be ex-officio chairman, whose duty it shall be to take in 
charge the Missionary, Bible, Common Prayer Book, Tract, 
and Sunday School operations of the Church of the diocese. 
The committee is to make a report of their proceedings to 
each annual convention. {Canon 3, Journal 1847.) 

There are also other diocesan committees, of a special 
nature, in various dioceses; such, for example, as a commit- 
tee on a diocesan fund, a committee for the relief of disabled 



OF THE DIOCESES. 221 

clergymen, and others. It is not necessary to enter into a 
detail of the provisions in such cases. 



TITLE V. 
REGULATIONS OF LEGISLATIVE ACTION. 

In Maryland, eight members of the clerical and n 

§ 1. Quorum. 
eight of the lay order constitute a quorum for the 

transaction of business, but a smaller number may adjourn. 
In Massachusetts, the members present, on due notification, 
and duly organized, shall constitute a quorum for the trans- 
action of the ordinary business of the convention. In Con- 
necticut, one-third of the members of the clerical, and twenty 
members of the lay order are sufficient — a smaller number 
may adjourn. By the rule in Missouri, the Bishop, with such 
clergymen and lay deputies as shall at any time be duly as- 
sembled in convention, may act. The provision in Kentucky 
is the same. That of Delaware requires only two members 
of the clerical, and six of the lay order ; and in Western New- 
York twenty clergymen entitled to vote in convention, and 
deputies from twenty congregations suffice. 

The regulation of New- York by the canon of 1848, § 9, is 
that the presence of at least thirty clergymen entitled to vote 
in the convention, and of delegates from at least thirty con- 
gregations, shall be necessary to the transaction of business, 
except that a smaller number may adjourn from day to day. 

Bv the second section of the 5th article of the 

. § 2. Mode of 

Diocese of Wisconsin, the clergy and lav delegates „,„„, 

shall deliberate in one body, and shall vote as 

such. On a call of any five members, the convention shall 

vote by orders. In such a case, the concurrence of both orders 

shall be necessary to give validity to any measure, and each 

parish shall be entitled to only one vote. 

On every question the votes of a majority of those present ; 

15 



222 CONSTITUTIONS AND CONTENTIONS 

or when voting by orders, the votes of a majority of those 
present of the two orders respectively, shall decide the ques- 
tion. 

The rule in Ohio is similar to this of "Wisconsin. Unless 
a requisition to vuce by orders is made, the vote is in one 
body ; and as there may be three or four delegates from a 
parish, the preponderance of the laity in this mode of voting 
would be great. In Maryland and Yirginia there is a similar 
rule, but then each parish sends but one delegate, or only so 
many as there are officiating ministers within it. 

In New-York the regulation is more complex. By the 
7th article of the constitution, the clergy and laity are to de- 
liberate in one body, and in voting the clergy shall vote by 
individuals, and the laity by congregations ; and w T hen more 
than one church or chapel shall be united under one vestry, 
the delegate or delegates of such vestry shall be entitled to a 
vote for each church or chapel. 

A majority of the votes of the two orders, jointly, shall be 
decisive ; but if in any case it be required by five votes, the 
two orders shall vote separately, in the manner aforesaid—- 
that is, the clergy by individuals, and the laity by congrega- 
tions, and a concurrence of a majority of each order shall be 
necessary to constitute a decision. 

In the election of a Bishop, the two orders shall always 
vote separately, and in the mode before mentioned. 

In Pennsylvania, every member who shall be in the house 
when any question is pat, shall, on a division, be counted, 
unless he be particularly interested in the decision. (9 Rule 
of Order.) So in New-Hampshire. (9 Rule of Order.) 

In Maine, each church represented in convention shall 
have one vote, and no deputy shall represent more than one 
church. (Const., Art. IV.) The clergy and lay delegates 
vote and deliberate in one body ; but, when requested by any 



OF THE DIOCESES. 223 

member, may vote in two distinct orders, and the concurrence 
of both orders is requisite. (Art. III.) 

By a rule of Massachusetts, a question, being decided, 
shall not be reconsidered during the same session, without 
the consent of two-thirds of the members present, nor unless 
the motion to reconsider be made and seconded by members 
who voted in the majority on the original decision. A similar 
rule, as to two-thirds, prevails in Rhode Island, (Rule 5, 184?,) 
and in Pennsylvania and Delaware. 

Various other regulations, more or less minute, prevail in 
the different dioceses ; but it is thought sufficient to point out 
the above as of chief importance. 



CHAPTER III. 

OF PARISHES— THEIR SEPARATION AND DIVISION; 
AND THE ORGANIZATION OF CHURCHES, OR 
CONGREGATIONS. 



TITLE I. 

OF PARISHES THEIR DIVISION THE FORMATION OF NEW ONES, 

AND THE BUILDING OF CHURCHES. 

The Diocese was an early territorial division in Christian 
countries, and to the inferior clergy were only entrusted such 
villages or small districts as the Bishop chose to assign to 
them. The oblations paid were managed by him. He had 
entire control of all inferior churches within his diocese, formed 
by the act of the patron who founded and endowed the church, 
and who would regulate the extent of the parish limits, but 
the authority of the Bishop was necessary for the complete 
settlement of the ecclesiastical division. 

Occasionally the Popes interfered, as in the instance of an 
injunction of Alexander III. to the Archbishop of York, enjoin- 
ing him to divide a parish which was too large. Again, the 
royal power was sometimes invoked. Henry III., at the re- 
quest of the Bishop, ordered a church to be suppressed in the 
town of Chichester, and two parishes to be joined into one. 1 

1 See a Treatise by Sir John Conelly on the Law of Tithes in Scot- 
land, and the authorities, particularly that of Selden, cited by him. 



226 OF PARISHES. 

Bishop Stillingfleet says: — " There were at first no such 
parochial division of cures, here in England, as there are now; 
for the Bishops and their clergy lived in common, and before 
the number of Christians was much increased, the Bishops 
sent out the clergy to preach to the people as they saw occa- 
sion. But, after the inhabitants had generally embraced 
Christianity, this itinerant going from place to place was 
found very inconvenient. Thereupon the bounds of parochial 
cures were found necessary to be settled here, by degrees, by 
those Bishops who were the great instruments of converting 
the nation from Saxon idolatry." 

The learned author then traces the progress of parishes in 
the Saxon times. " In the Council of Cloveshoo," (called the 
first of the National Councils, a. d. 742,) " we hear of pres- 
byters placed up and down by the Bishops in the manors of 
the laity, and in several parts distinct from the Episcopal See. 
Every Bishop, as appears by the Saxon Councils, was bound 
to see parochial churches built, and the clergy to be settled 
in them." 

"In the ancient Church," says Chief Baron Gilbert, "they 
had but one chief pastor to every particular church or diocese, 
and the other clergy were ambulatory, at the Bishop's plea- 
sure, within the diocese ; and tho*, after the Council of Late- 
ran, the parochial clergy were settled in each parish, the 
Bishop only retaining a chapter in the cathedral church as 
assistants to him, yet the Bishop was reckoned as the sole 
pastor of the church, and the others to have the cure under 
him. Hence, in provincial synods the Bishops only met, and 
were convened by the Metropolitan ; and each Bishop also 
held a diocesan synod with his own clergy, in which he made 
rules and orders for the regulation of the diocese, provided 
they were not against the canons of the province." 1 

1 Court of Exchequer, p. 48. To show the great antiquity of the 
division into parishes, some Canonists cite a letter, ascribed to Pope 



OF PARISHES. 227 

In several of the Southern dioceses, the territory had been 
divided into parishes by acts of the Colonial Assemblies. 1 

Dyonysius, of the year 269. (Apud Collectio Conciliorum Mansi, tome 
1, p. 1008. Ecclesias vero singulas singulis presbyteris dedimus, paro- 
chias et cemetria eis divisimus 1 ut unicunque jus proprium habere statui- 
mus, ita videlicet ut nullus altcrius parochice terras, terminos aut jus 
invadat ; scd unusque suis terminis sit contentus, et taliter ecclesiam et 
plebem sibi commissam custodiret, ut ante tribunal ceterni judicis , de omni- 
bus sibi commissis rationem reddat, et non judicium sed gloriam pro suis 
actibus recipiat. 

It is 7 however, denied that this letter is rightly attributed to the 
Pope. Van Espen, speaking of its antiquity, says, that it was known 
in the time of Athanasius. (De Pastoribus, fyc, tome 1, p. 10, tit. 3, 
1, 2.) In his treatise De Jure Parochorum, (tome 2, p. 249. cap. 1, § 3,) 
he observes — Dioceses sive Districtus Episcopales jam a pluribus sa> 
culis in plures portiones quas paroehias hodie dicimus fuisse distri- 
butas, notissimum est. Porra sieuti lano diocesi unicus Prsefectus fuit 
Episcopus, ita et singulis parochiis datus fuit presbyter qui totius 
parochise curam spiritualem ageret; qui propterea parochus seu pres- 
byter parochianus dicebatur. 

1 In Maryland, by an act of 1692, the .-counties were divided into 
parishes. In 1725, a division to some extent took place, in furtherance 
of one of the schemes of Boardesley to ruin the Church. (Hawks' 
Contr. 2, pp. 70 and 177.) Other changes took place, but, as I under- 
stand, the diocese is still divided into parishes, whose boundaries are 
fixed by law — that is, either under the original division, or such 
changes as have been made by subsequent statutes, or by the Con- 
vention, by virtue of the law of 1798, giving that body the power to 
divide parishes. The separation of a parish, or the establishment of a 
separate congregation, is pro vi tied for in $he 3d canon of 1847. 

I have not been able to ascertain when the establishment of parishes 
first took place in Virginia. Justice Story, in Terret vs. Taylor, (1 
Wheat on,) says " that the State was thus divided into parishes at a 
very early period." They are referred to in an act of the Colony of 
1629, and Dr. Hawks gives a list of those in existence in 1722, (Contr., 
fyc, vol. 1, p. 55;) fifty-four parishes in twenty-nine counties. He 
states that in many of the larger parishes there were chapels of ease. 

In the act of 1784, the minister and vestry of each parish already 
in being, or thereafter to be established, were made a body corporate. 
The Convention of the Church was authorized to regulate all her reli- 
gious concerns, settle all matters concerning doctrine, discipline or 
worship, and make such rules as should be just for orderly and good 



228 OF PARISHES. 

These divisions prevail substantially, in some cases, to this 
day, although varied by law, or by the conventions of the 
Church. 

In England, the adjustment of church boundaries gene- 
rally depends upon ancient and immemorial custom, for they 
have not been limited by act of parliament, nor set forth by 
ecial commissioners, but have been established as circum- 
stances of time and place did happen to make them greater 
or lesser. 1 Perambulations of parishes, in order to identify 
and preserve the certainty of bounds, were of ordinary occur- 
rence, and were expressly directed and regulated in old insti- 
tutions. 2 

government. This act was repealed in 1786. An ordinance for the 
general government of the Church was adopted by the Convention in 
1787. after this repeal, and contained provisions similar to those in the 
act before mentioned. 

As I understand, the original division into parishes remains, with 
such changes as have from time to time been made. The power to 
separate and create new parishes rests in the Convention. A canon of 
1823. amen lei in 1839, regulated the exercise of this power. 

In South Carolina, also, parishes were to a great extent defined by 
law. In the case of BanJcstead vs. The Vestry, fyc, of Christ Church, 
(Stobhart's Eq. Rsp., 197,) the subject is explained. The Court say 
— "That by an act of 1708 the boundaries of several parishes were 
defined — that from an early period it was the custom of the General 
Assembly, when the boundaries of a parish were large, and conveni- 
ence required it, to establish other places of public worship besides the 
parish church. These were called Chapels of Ease, and the statutes 
required the rector of the parish to perform ministerial offices in them 
at stated periods." The question in the cause arose from an applica- 
tion, by the vestry, of some of the funds to the payment of the minis- 
ter's expenses when serving in the chapel. The decision supported 
the right to do so. The Court said that they would not interfere with 
the acts of a vestry unless their charter was transgressed. 

It appears that the legislature often interposed to define the limits 
of parishes, to unite one or part of one with another, and to divide 
them. There are some instances of this after the Revolution. See 
Brenard's Digest, Tit. Districts and Parishes. 

1 Burns' Ecc. Law, vol. 3, p. 74. 

2 Injunctions of Elizabeth apud Gibson y vol. 1, p. 239. " For the re- 



OF NEW CHURCHES. 229 

The whole subject of the division of parishes has been 
regulated in England by the Act of 1 and 2 Victoria, cap. 
106, § 26, and I deem it useful to state its leading provisions 
in a note. 1 

The erection of new churches within a parish 

The building 

is a branch of the same power as that of creating new 
new, or dividing old parishes. Indeed, if a new 
church is erected, and occupied for services in a parish, it im- 
plies, to a certain extent, a division of that parish. To such 
an erection the canon law, both foreign and English, impera- 
tively requires the sanction of the Bishop. 1 

taming the perambulation of the circuit of parishes, they shall once in 
the year, at the time accustomed, with the curate and the substantial 
men of trie parish, walk about the parishes as they were wont, and at 
their return to the church, make their common prayers.' 7 The curate 
was, at certain convenient places, to admonish the people to give 
thanks to God for the abundance of the fruits of the earth, and to 
inculcate these or such sentences: "Cursed be he which translateth 
the bounds and dolles of his neighbour." 

1 When a Bishop shall consider that a place or district might be ad- 
vantageously separated from any parish or mother church, and be in- 
stituted as a separate benefice, or united with any other parish, or that 
any extra parochial place may be usefully annexed to an existing par- 
ish, or be constituted a separate parish, he shall draw up a scheme in 
writing of the proposed alteration, and showing how it may be made 
with justice to all interested, as to ecclesiastical jurisdiction, glebes, 
tithes, and other rights and dues. This is to be presented to the Arch- 
bishop, with the consent in writing of the patron. If the Archbishop 
approve, he is to certify it to the Queen in council, who is to make an 
order for carrying it into effect. It shall be binding upon all, including 
the incumbent, provided such incumbent has given his consent in 
writing to the same; but if no such consent has been given, the order 
shall not go into operation until the next avoidance of the benefice by 
such incumbent. 

1 See the Dissertation upon Benefices by John De Selva apud Moli- 
naeus, (Tome 4, p. 762 et seq. Ed. Paris, 1681.) In his sixth question 
he examines the point whether it is allowable to any one to erect a 
church and endow it on his own authority. After a minute statement 
of canonical authorities, he concludes with those doctors who hold the 
negative. He quotes also the opinion of a canonist, that no one should 



230 OF NEW CHURCHES. 

The canonists lay down the rules with great unanimity, 
that the Bishop ought not to consent to the erection of a new 
parish within the limits of another without some reasonable 
cause therefor. Among such legitimate reasons is this, that 
the parishioners cannot, without great inconvenience, come to 
the parish church to receive the sacraments and attend the 
offices. Bat what the distance from the church, or the size 
of the parish should be, as it has not been declared by law, 
must be left to the discretion of the judge. 

As the construction of a new church may injure the rights 
of the rector or patron of the old, the Bishop must not give 
his consent without citing and hearing the rector and others 
interested. But if the rector being thus cited and heard, re- 
be allowed to establish an oratory in his own house without Episcopal 
assent, lest prejudice should be done to the parochial church, (p. 766.) 
But the same author holds (p. 766, § 19, 20) that the Bishop may, 
upon reasonable cause, establish a new church, though to the prejudice 
of another; but it seems it must be with consent of his chapter. 

So in the Institutes, Jur. Can. (Lib. 2, Tit. 18,) it is laid down, that 
a new church should be built when, by reason of the increase of the 
people within certain limits, the number of the faithful has become so 
large that one church is insufficient for them ; and for the same reason 
that one Episcopal see may be divided into two with the consent of 
the Bishop, so also may the Bishop divide parishes with the assent of 
the rector, which, when done, that part of the congregation which is 
attached to the new church is released from the power of the first. 

By one of the Novels, (131, cap. 10,) the Emperor Justinian de- 
clared, that none shall presume to erect a church until the Bishop of 
the diocese has been acquainted therewith, and shall come and lift up 
his hands to heaven, and consecrate the place to God by prayer, &c. ? and 
erect the symbol of our salvation there. 

The 4th canon of the Council of Lateran was express upon this 
point — "No one shall build a monastery or church against the will of 
the Bishop of the city." This canon was adopted in England at the 
Council of Westminster in the time of King Stephen. Nequis absque 
licentia Episcopi sui, in possessione sua ecclesiam vel oratorium con- 
stituat. See Gibson's Codex, vol. 1, p. 212. The argument of Bishop 
Gibson against Lord Coke's opinion, that the Barons could build 
churches of their own authority, seems very decisive. See also Burns, 
by Phillimore, vol. 1, p. 223, 4. 



OF NEW CHURCHES. 231 

fuses his consent, and the erection is still deemed necessary, 
it may be done in opposition to his remonstrance. 1 

It is also well settled, that the license of the Bishop 
is necessary to authorize any minister to officiate in an 
unconsecrated place ; and by the law of England, the con- 
sent of the incumbent is equally essential/ 

There is another principle of the General Law of the 
Church fully established. There can be no such thing as a 
church, in its true canonical sense, until the building has 
been consecrated by the Bishop. 3 In the nervous language of 

1 Van EsPEN.'Pars. 11, Tit. 16. cap. 2. Be Edif. fyc. EccZesns, particu- 
larly § 12-16. The 17th section is as follows: Si Rector citatus et 
auditus in nova parochial erectione consentire reniiat et tamen erectio 
ilia necessaria judicetur, poterit tunc etiara illo invieto procedi. ut uno 
consensu resolvunt canonists. 

2 This law of the English Church was settled in the Council of 
London, under Archbishop Stratford, in 1342. It is in the first consti- 
tion of what are called the Extravagants. Nos de fratrum nostrarum 
et totius concilii assensa et concilio deceraimus quemcunque in ora- 
torias, capellis, aut domibus hujusmodi seu in loco minime dedicato 
seu delibato missarnm solenina (Diocesani non obtenta licentia) contra 
canonum prohibitimem. celebrantum. suspensionem a divinorum cele- 
bratione per mensem incurrere ipso facto. Then follows a passage re- 
cognizing the authority of the Bishop to give such licence, and saving 
all such licenses as had been previously granted, and where custom 
had established the privilege. (See Oxford edition. 1679. of Lynwood 
and John of Anthon, ad finem p. 48.) 

In the case of Hodgson vs. Dillon. (2 Carters Rep. 388.) Dr. Lush- 
ington in his judgment observed. :: I need not say that the ancient 
canon law of this country knew nothing of proprietary chapels, or un- 
consecrated chapels at all. The necessities of the times, and the want 
of accommodation in the churches and chapels of the metropolis and 
other large towns, gave rise to the erection of chapels of this kind, and 
to the licensing of ministers of the Church to perform duty in them. 
The license emanates from the Episcopal authority. The Bishop, how- 
ever, cannot grant such a license without the consent of the rector or 
vicar of the parish." 

3 Lord Coke (4 Just., p. 403) says, that the law takes no notice of 
churches or chapels until they are consecrated by the B;shop. A ques- 
tion, therefore, of church or no church, is to be settled by him. See 



232 OF NEW CHURCHES. 

Ridley, " that the Patriarch or Bishop should challenge this 
jurisdiction over the new church seems most reasonable. For 
what did the patron do more than the man of Israel, who 
brought a lamb to the door of the Tabernacle, but the priest 
made it an offering and atonement. The patron, indeed, 
might perhaps choose the place, but until the prelate came and 
sanctified the ground, it might as well be a den of thieves as 
a house of prayer. The patron might bring the stone — the 
Bishop laid the foundation ; or, if the workmen put the ma- 
terials together, and made up a house, the Bishop made that 
a church. Till then there was nothing but the breathless 
body of a temple, the soul being yet to come. Therefore it 
was, that the privilege of a new church followed, not the 
building, but the consecration of it." He cites a law of King 
Alfred, confining the privilege of sanctuary to consecrated 
churches. 

There was another rule in force — that no church should be 
consecrated without a sufficient maintenance being provided 
for it. 1 The ancient manner of founding churches was this : 
After the founders had made application to the Bishop of the 

also 3 Insi.j 203. So chapel or no chapel ought to be tried by the 
spiritual judge ; for a chapel dependent on a mother church cannot be 
founded but with license of the ordinary. GrBsoN 1. p. 236. 

1 This was made the law of the Church of England by the 16th 
cancn of the Council of London. " A church shall not be consecrated 
until necessary provision be made for the priest/' The canon law re- 
quired the endowment to be ascertained before they began to build, 
and the same was the rule of the civil law. 

The same law was enacted in the Council of Toledo. St. Chrysostom 
calls it the dowry of the bride. (Spelman Be Non Temerandis Ecc. 
p. 5.) Justice Story thus states the English law: "The true legal 
notion of a parish church is a consecrated place, having attached to it 
the right of burial and the administration of the sacraments. Every 
such church ought to have a manse and glebe as a suitable endow- 
ment, and without such endowment it cannot be consecrated, and un- 
til consecration, it has no legal existence as a church." (1 Wheaton, 
414.) 



OF NEW CHURCHES. 233 

diocese, and had his license, the Bishop or his commissioners 
set up a cross and set forth the ground where the church was 
to be built, and then the founders might proceed with the 
building of it ; and when the church was finished, the Bishop 
was to consecrate it, but not till it was endowed ; and before 
this, the sacraments were not to be administered in it. 1 So 
the canon law was very strict upon the subject of demolishing 
or enlarging the old churches and erecting new buildings in 
their place. By a constitution of Otho, which is only a repe- 
tition of the fixed rule of that law, neither abbots nor rectors 
should presume to pull down ancient churches without the 
consent of the diocesan, under pretext of increasing the size 
or beauty. The Bishop was carefully to consider whether 
he would give or refuse this permission. Othobon added a 
provision, that the rector of every new church should apply to 
the Bishop within a year for its consecration, or should be 
suspended. (Apud Gibson, vol. 1, p. 210, 211.) 



The authority to divide parishes and erect new ones is 
recognized, in several dioceses, to exist in the Convention. 2 It 

1 Degge's Parson' 's Counsellors, part 1, c. 12. 

9 In Virginia, in a canon of 1823, it was recited that, from the 
great extent of many of the parishes, and from other reasons, it might 
be expedient to permit the dirision of some of them. — and it was 
enacted, that, whenever it should be made to appear to the satisfac- 
tion of the Convention that such division is expedient, or when the 
desire of the people of the parish shall be manifested in the way 
pointed out, the petitioners may be received as a distinct parish. 

In 1839, this canon was amended, by adding a provision that due 
notice should be given, at least three months previously, to the rector 
and churchwardens of the original parish, of such proposed division. 

In 1848, a revision of the canons took place. The 2d canon, enti- 
tled, "Of the Division of Parishes." provides, that whenever [he mem- 
bers of the Church, residing in a particular portion of a parish, shall 
desire to separate from the parish of which they form a part, it shall 
be lawful for them to assemble, and appoint a committee to take such 
measures as may be necessary. 

The committee must give to the Bishop, and to the vestry of the 
parish, if there be one, a formal notice of their intention to apply for 



234 DIVISION OP PARISHES. 

is shown, by the authorities cited in several preceding notes, 
(p. 229,) that, by the general canon law, as well as that 
of England, this power (being in effect almost identical with 

such purpose, which notice shall contain a description of the proposed 
lines of division, and must be sent to the Bishop and vestry at least 
three months before the meeting of the Convention at which the appli- 
cation is to be made. 

Such application shall be in the form of a petition, setting forth 
the considerations rendering the division desirable ; whereupon the 
Convention, if they deem it expedient, may proceed to divide such 
parish. 

By the 12th canon, entitled. '-'Of the Formation of New Congrega- 
tions,' when any number of persons belonging to any parish or con- 
gregation, sufficient to build a house of worship and provide for the 
support of a minister, shall choose to separate from such parish or 
congregation, they may proceed according to the directions given in 
the eleventh canon, except that, in such case, the direction as to a line 
or lines of division is inapplicable. The Convention may, on such 
petition, constitute the applicants a separate congregation. 

The Committee on Canons, in the year 1848, reported "that they 
found on the Journal of the last Convention the following reso]ution : 

" Resolved, That the Committee on* Canons take into consideration 
the canon or canons relating to the division of parishes or formation of 
new ones, and to inquire into the expediency of abolishing so much of 
the canons as requires that the boundaries of parishes shall be defined. 
' : Your committee suppose that the division of parishes and forma- 
tion of new ones will be sufficiently provided for by the adoption of the 
canons presented in the preceding report, (the 11th and 12th canons.) 
And with regard to parish boundaries, it will be perceived, by a refer- 
ence to Canon 31 of the General Convention of 1832, that to abolish 
them entirely is not within the power of the Diocesan Convention. 
We might do away with those to which we have been accustomed, 
but this would only bring us within the provisions of the general 
canon, which ordains that where no boundaries are defined by law or 
otherwise, the city, borough, village, town, or township limits shall 
be recognized for the purposes contemplated/' 

The Vestry Act of Maryland, of 1798, gave full power to the Con- 
vention of the Church to divide or unite parishes, as occasion might 
require, and to alter their bounds, and to constitute new parishes. 
($ 33.) And, by the 3d canon of that diocese, (1847,) no part of a 
parish shall separate itself from the residue thereof as a distinct 
parish, nor shall any number of the members of a church in a distinct 
parish associate themselves as a separate congregation therein, with- 



DIVISION OF PARISHES. 235 

that of building new churches) was vested in the Bishop, so 
far at least as that his consent was necessary ; and the provi- 
sion of the English statute was adverted to, showing that, 

out first obtaining leave of the Convention, who shall judge of the 
necessity or expediency thereof. 

By a resolution of the Convention, adopted in 1811, it was deter- 
mined that no consent would be given to the division of a parish, 
unless it should appear that the petitioners for the same had set up 
notices of their intended application, three months previous to the 
same, at the parish church, if there be one, and also at the other 
public places within such parish, and shall lay before the Convention 
correct information of the lines of the parish so to be divided, the situ- 
ation of the churches or chapels already therein, together with the 
intended lines of the new parish. 

This resolution is now in force, and in 1849 the Committee on New 
Parishes recommended the rejection of several applications, on account 
of the neglect to give the prescribed notice; which was assented to. 

At the same Convention, an application to form a new congrega- 
tion within a parish, being assented to by the rector and vestry, was 
granted. And two new parishes were formed, and defined by metes 
and bounds, out of existing parishes, the assent of the rector being 
obtained. 

The system in Maryland is thus, in general, canonical in principle 
and wise in the details. The notice to the rector and vestry is pro- 
vided for; the consent is sought; but, if refused, there is a power in 
the Convention to carry i.ut a division, notwithstanding the refusal. I 
may be allowed to suggest, whether, in omitting to provide for the 
assent of the Bishop, it is not imperfect. 

By the 8th canon of the diocese of Connecticut, it is made the duty 
of the Convention, from time to time, to examine and determine the 
limits of the several cures within the diocese ; and, in the settlement 
and maintenance of clergymen, the several parishes shall strictly ad- 
here to such arrangement, except in cases of imperious necessity, and 
with the advice and consent of the ecclesiastical authority. See the 
proceedings for the formation of St. James Parish Zoar, in Newtown, 
Journal 1830, by petition to the Convention. The object was to form 
a separate parish out of that known as Trinity Parish. 

By a canon of the diocese of Alabama, (1849,) when any portion of 
a parish, in connection with the Convention, shall desire to separate 
from the parish to which they belong, and to form a new parish, they 
shall first secure the consent of the parish, adopt articles of associa- 
tion, and apply to the Convention for admission. In case the parish 
should not consent to the proposed division, the fact shall be made 



236 DIVISION OF PARISHES. 

while the Bishop originates, the Archbishop must approve, 
and the Queen must ratify. It was also shown that, by the 
English law, the division cannot be perfected during the in- 
cumbency of a minister, without his consent. 

But, in this, the English differs from the general canon 
law. The authorities cited prove that the Bishop could (after 
duly hearing the rector) divide a parish, and erect a new 
church, against his consent. And the canonical regulations 
and resolutions in Virginia and Maryland, before quoted, tend 
to prove the same thing, but vesting the power ultimately in 
the Convention. 

See further upon this subject, post, Tit. 7, Of the Admis- 
sion of Churches into Union, and also Chap. VI., upon the 
31st Canon of 1832. 

known to the Convention, which shall then decide upon the expediency 
of the separation. 

By a canon of the Scottish Church, (39 of 1838,) should any num- 
ber of Episcopalians, living in any town or village in which there is 
an Episcopal chapel already in existence, entertain a desire to be 
formed into a congregation in communion with the Church, they are 
to pursue the method pointed out. A meeting is to be held upon 
public advertisement, and resolutions expressive of the wish, and the 
reasons for it, are to be signed by the applicants, and transmitted to 
the Bishop of the diocese. The Bishop is to consult the presbyters. 
If he follow the advice of a majority of such presbyters, his decision 
shall be final : but, if he decide against that advice, an appeal may be 
made to the College of Bishops. Should the Bishop sanction the ap- 
plication, the congregation may then proceed to elect a minister, and 
present him to the Bishop, according to Canon 10. 

It appears that in the Established Church of Scotland the division 
of parishes is regulated by the law of the State. (See Sir John Cox- 
nell's Law of Scotland as to the Erection, Union, and Disjunction of 
Parishes, 1818.) The course (at least at that time) appears to be this: 
The Presbytery of the bounds perambulated the parish — the heritors 
represented the case to the General Assembly, which judged of the 
propriety of the measure; and, if the decision was favorable to it, 
instructed the Procurator of the Kirk to prosecute the affair according 
to law. 



§1. 

Incorpora- 
tion under 
civil laws. 



ORGANIZATION OF CHURCHES. 237 

TITLE II. 
THE ORGANIZATION OF CHURCHES. 

This subject comprises, first, the method pro- 
vided by the legislatures of various states for ef- 
fecting a legal incorporation, or organization of 
churches; and next, the provisions of conventions for effect- 
ing an organization where there are no legislative enactments. 

It would be a work of much labor, and without a corres- 
ponding advantage, to state in detail the statutory regulations 
prevalent in various dioceses. It will be sufficient to present 
them as they exist in some of the older, with an occasional 
comparison with others. Some general principles will be 
found to prevail throughout. 

In New- York, for example, an act was passed in 1784 to 
enable religious denominations in the state to appoint trustees, 
who should be a body corporate, for the purpose of taking 
care of the temporalities of their respective congregations, 
&c. It is needless to state the provisions of this act, 
as one was subsequently passed relating especially to the in- 
corporation of churches of Episcopalians. The tenth section 
may, however, be noticed. It was provided " that nothing 
therein contained should be construed, adjudged, or taken to 
abridge or affect the right of conscience or judgment, or in 
the least to alter or change the religious constitutions or 
government of the said churches, congregations, or societies, 
so far as respects, or in any wise concerns the doctrine, dis- 
cipline, or worship thereof." 1 

1 There was a statute in force in Connecticut in the year 1807. un- 
der which congregations of all denominations might organize. It ap- 
pears from the address of Bishop Jarvis of that year, that some of the 
churches had dropped the words. '' wardens and vestrymen/' and 
' ; parish," and substituted "committee." and "society." This prac- 
tice he condemns, and observes, that as far as the law extends to the 
Church, the wardens and vestrymen have all the powers of what is 
termed a Society's Committee. {Journal, 1807) 

In the convention of 1840. a committee was appointed to inquire 
1G 



283 ORGANIZATION OF CHURCHES, 

I si" ah make the statute of New- York the guide of my 
remarks upor this head, adverting to the analogous provisions 
in other dioceses. 

The statute at present in force was passed in 1801, re- 
vised in 1813, and amended in 1819. Some further clauses 
were adopted in 132f\ The following are the provisions of 
the existing law, broken into sections for convenience, but 
the language is given literally. 

4 It shall be lawful for the male persons of full 

Who may . r 

unite a § e belonging to any church, congregation, or reli- 
gious society, in which divine worship shall be 
celebrated according to the rites of the Protestant Episcopal 
Church in this state, and not already incorporated, at any 
time to meet for the purpose of incorporating themselves, and 
of selecting churchwardens and vestrymen. 5 * (Act of March 
5, 1819, § 1.) 

By the act of 1813, it was requisite that the persons 
should have belonged to the congregation for the last twelve 
months preceding the election and incorporation, and should 

into the expediency of applying to the legislature for the passage of 
some act suited to the organization of the Protestant Episcopal Church 
in the diocese. In 1841 the committee reported, and a further com- 
mittee was appointed to prepare and report some suitable legislative 
measure. At the same convention a report was made and accepted — - 
that as the Seventh Article of the Constitution of the state declares 
that each and every society or denomination of Christians in the state 
shall have and enjoy the same and equal powers, rights, and privileges, 
no special act in behalf of any one religious denomination could be 
obtained of the legislature, and that it would be better to endure the 
evils of the present imperfect laws on the subject of religious societies, 
than to attempt to effect a special alteration in our favor, and fail.'' 

In 1842, however, a provision was added to the General Statute of 
the state, declaring that the acts which had been done by ecclesiasti- 
cal societies in the state, organized under the Episcopal order, should 
be deemed valid, and that the wardens and vestrymen of such socie- 
ties, shall have all the powers in managing the aflaiis of such so- 
cieties as are granted to the committees of religious societies. 



O R Gr A X , N OF CHURCH E S , 239 

have possessed the qualifications which are required at all 

subsequent elections. By the amendment f 1SK 1 these were 
dispensed with at the meeting to organize. 

The sta :. f e oi the state of Wisconsin appears to have 
been taken nearly verbatim from the act of 1:1-3 cf New- 
York, making these qualifications indispensa le at the first, as 
well as at future elections. {Journal Wisconsin^ 1847, 
pendix I'.) 

By the 5th section of the act of New Jersey of 1829, the 
qualifications of electors at the annual elections shall be con- 
formable io the constitution and principles of the Episcopal 
Church in that state. These are prescribed by Canon 6, de- 
clai ing, that every person shall be entitled to vote who pro- 
fesses to adhere to the church, and contributes to its support 
in the mode prescribed in his particular congregation, and 
shall have been a worshipper in said church six months pre- 
vious to the election. 

And, by the first section of the act referred to, "where 
any congregation of the Protestant Episcopal Church in the 
state, duly organized according to the constitution and usages 
of such Church, desire to form themselves into a body cor- 
porate.*' notice may be given, and proceedings had as directed 
in that and the succeeding section. 

The course in Maryland, if I correctly understand it, is 
this :— The colonial distribution of the state into parishes 
has been retained, and recognized (for the purposes of the 
Episcopal Church) in the act of 1798. Every Episcopalian, 
therefore, belongs in fact to some parish, when he is attached 
to any church. A new congregation or church is then formed 
by a division of a parish, or a separation of a part and its 
addition to another. 

Accordingly, by the 33d section of the Vestry Act of 179S, 
it is provided, that it should be lawful for the convention of 
the Protestant Episcopal Church in this state to divide or 



240 ORGANIZATION OF CHURCHES. 

unite parishes, as occasion may require, and to alter their 
bounds, and to constitute new parishes ; and vestrymen and 
church- wardens of such new parishes shall be chosen as here- 
inbefore provided, and shall have perpetual succession, and be 
incorporated by the name of the vestry of such new parish, 
and shall have all the powers granted in the act to other 
vestrymen and church-wardens; provided, that a majority of 
the members of the Protestant Episcopal Church, qualified to 
vote for vestrymen, residing in any parish, or part or parts of 
a parish or parishes, proposed to be added to any new parish 
or parishes, or to be constituted into a new parish, shall con- 
sent thereto. 

The qualifications of voters for vestrymen are declared in 
the 2d section of the act. Every free white male citizen, a 
resident of the parish six months previous to the election, who 
shall have been entered on the books of the parish one month 
previous as a member of the Protestant Episcopal Church, 
and shall have contributed to the charges of the parish such 
sum as a majority of the vestry of the parish shall have de- 
clared, not exceeding two dollars annually, is entitled to vote. 

The third canon of the diocese has provided, that no part 
of a parish shall separate itself from the residue thereof, as 
a distinct parish, nor shall any number of members of the 
Church in any parish associate themselves as a separate con- 
gregation therein, without first obtaining leave of the con- 
vention, who shall judge of the necessity and expediency of 
such separation or association. But no parish or congrega- 
tion, though constituted with such consent, shall be considered 
part of the Church in the state without a strict conformity to 
the use of the Liturgy of the Church, nor without a compli- 
ance, in the case of a parish, with the provisions of the Vestry 
Act of 1798, or, in the case of a congregation, with those of 
an act " to incorporate certain persons in every Christian 



ORGANIZATION OF CHURCHES. 241 

church or congregation in this state," and the supplements 
thereto. 

It will be seen that the canon contemplates two cases — 
the creation of a separate parish within the precincts of an 
established one, and the formation of a new church or con- 
gregation within a parish. The statute last cited, passed in 
1892, by its 10th section, authorized any number of persons, 
belonging to any church or congregation, sufficient to build a 
place of worship and maintain a minister, to separate from 
the church or congregation of which they had formed a part, 
and to erect a house of worship, and employ a minister of 
their own; and, by the 12th section, so much of the act for 
the establishment of vestries for each parish, as was incon- 
sistent with this section, was repealed. 

In the convention of 1814, it was held, that these statures 
did not impair the power of the convention to prescribe any 
regulations for the admission of a new church into union with 
itself. The distinction was taken, and admitted by all, that 
while the Church could not prevent any body of individual 
members from associating under this act, it could refuse 
admission into union to such an association, unless it submit- 
ted to the canonical regulations of the Church. Among these 
is the entire right of the convention to judge of the propriety 
of the new organization, sanctioned by the Yestry Act, and 
embodied in the canon before mentioned. 

It appears, that when a congregation is organized under 
the act of 1802. they may select not less than five nor more 
than thirteen persons, who are constituted a body politic and 
corporate, to act as trustees, upon being duly registered ; and 
there are various provisions to provide for their succession, 
and to regulate their powers. All the male persons above 
twenty-one years of age, belonging to the church or congre- 
gation, may vote for these trustees. (§ 2.) Perhaps the third 
section qualifies this, where Episcopalians elect. 



242 ORGANIZATION OF CHURCHES. 

No part of the Vestry Act of 1798 is -repealed, except (as 
before mentioned) that portion which is inconsistent with the 
10th section, and a clause authorizing wardens to act as offi- 
cers of the peace. It is presumed, therefore, that there may 
be an organization of a new church either under the Vestry 
Act, or the Act of 1802. Among the documents set forth in 
the late compilation of the laws affecting the Church in Mary- 
land, is the form of an organization under the Act of 1802, 
recommended by the convention. Whether a congregation, 
duly established under the Vestry Act, can substitute an in- 
corporation under the Act of 1802, I am not prepared to say. 

The only other state whose enactments I shall advert to 
is Pennsylvania. By a statute of 1791, and a further act of 
1841, any number of persons, who mean to associate for any 
charitable, literary, or religious purpose, with the powers and 
immunities of a corporation, may prepare an instrument in 
writing, specifying the objects, name, &c, intended. This is 
to be presented to the Court of Common Pleas or Supreme 
Court. Certain preliminary measures, by advertisement, &c, 
are to be taken ; and if the object and conditions appear to 
the Court to be lawful, and not injurious to the Common- 
wealth, the Court directs the instrument to be recorded, and. 
the applicants are admitted to be a corporation. (Dunlop's 
Ed. Laws, 132, 824.) 

The first election under the statute of J\ T ew- 
First Election. 

York, is not only for the purpose of incorporating 

the congregation, but "of electing by a majority of voices 
two churchwardens and eight vestrymen, and to determine 
on what day of the week, called Easter week, the said offices 
of church wardens and vestrymen shall cease, and their suc- 
cessors in office be chosen." (Act 1813, $ 1.) 

"Notice of the first election shall be given in 
Notice of ° 

first election. * ne time of morning service on two Sundays pre- 
vious thereto by the rector, or if there be none, by 



ORGANIZATION OF CHURCHES. 243 

any other person, belonging to the said church or congrega- 
tion." (Ibid.) 

This notice should be explicit as to all the objects of the 
election ; viz : the incorporation of the church, the choice of 
church-wardens and vestrymen, and the determination of the 
day in Easter week on which the officers shall cease, and suc- 
cessors be chosen. Although the phrase is, that notice be 
given " on two Sundays previous," the practical construction 
is, that it must be on the two Sundays next preceding the day 
of election. 

The statute of Wisconsin is in this particular a transcript 
of our own. In New-Jersey, notice must be given of the in- 
tention to form a body corporate ten days previously, by an 
advertisement set up in open view at or near the place where 
the congregation usually assembles for divine worship, designa- 
ting the day when, and the place where it is designed to meet 
for the purpose. 

I do not find any provision in Maryland for a notice where 
a new parish is formed, with the sanction of the convention. 
By an act of 1823, where there is no vestry in a parish, any 
two or more members of the Episcopal Church in it may call 
a meeting of the members at the parish church, or if there be 
none, at any convenient place in the parish, first giving ten 
days notice of the time and place of such meeting, by ad- 
vertisement in writing set up at the most public places in 
such parish, to elect by ballot eight vestrymen. 

The notice under the statute of New- York must be given 
in the time of morning service. This may be at any time 
previous to its close. And this, with the previous clause, tends 
to prove that there must be a minister officiating in order to 
render the notice valid. 

u - The rector, or if there be none, or he be ne- 

Presiding Of- 
cessarily absent, then one of the churchwardens FICEK 

or vestrymen, Gr any other person called to the 



244 ORGANIZATION OF CHURCHES. 

chair, shall preside at such first election." (§ 1, Act 1813, 
New- York.) 

The provision in New- Jersey is, that the rector or minister, 
or if there be no rector or minister, or he be necessarily absent, 
one of the churchwardens or vestrymen, shall preside at the 
meeting. (§2, Act 1829.) 

In the statute of Maryland, of 1823, before noticed, the 
members of the church, when convened as directed, shall 
have power to choose a chairman and secretary, the former to 
preside at such meeting, and to determine who of the members 
convened shall be entitled to vote, and the latter to record or 
take minutes of the proceedings. (Act 1823, ch. 189, § 1.) 

The right of presiding involves the right of determining 
upon the qualifications of the voters. Those in New- York are? 
as has been seen, very simple for the first election, being 
merely that the persons are of full age, and have belonged to 
the congregation. The habit of worshipping with it for a 
period however brief, appears to be sufficient. 
Election and " The election shall be determined by a majo- 
Certificatb. r ity of voices; and the presiding officer, together 
with two other persons, shall make a certificate, under their 
hands and seals, of the churchwardens and vestrymen so 
elected, of the day of Easter week so fixed on for the annual 
election of their successors, and of the name or title by which 
such congregation shall be known in law. 

" This certificate, being duly acknowledged or proved, by 
one or more of the subscribing witnesses, before one or more 
of the Judges of the Supreme Court, or one of the Judges of 
the Court of Common Pleas, of the county where such church 
or place of worship of such congregation shall be situated, 
shall be recorded by the Clerk of such county, in a book to 
be by him provided for such purpose." (Act 1813, JV". York, 
$ 1.) (Note 1.) 

So, in New-Jersey, by the second section of the statute of 



ORGANIZATION OF CHURCHES. 245 

1829, the congregation, having met at the time and place ap- 
pointed, and appointed a secretary, " shall proceed, by a vote 
of the majority of those present, to designate the corporate 
name or title by which the church shall be known, which 
shall be in the manner and form as follows : — ' The Rector, 

"Wardens and Vestrymen of Church in .' The 

congregation shall then choose two wardens, and not more 
than ten nor less than five vestrymen, and shall also fix and 
determine the day annually on which elections of officers 
shall take place. A certificate of these proceedings, under 
the hands and seals of the president and secretary of the 
meeting, shall be transmitted to the Clerk of the Court of 
Common Pleas of the county, whose duty it shall be to record 
the same." 

The statute of Maryland, of 1802, after providing, in the 
2d section, that the male persons, above the age of twenty- 
one, of any church or society, may elect not less than five nor 
more than thirteen persons, constitutes such persons a body 
politic or corporate, upon being registered as prescribed ; and, 
by the 5th section, the time and manner of future elections of 
trustees is to be fixed at the first election, as well as the name 
or style of the corporation. Thereupon, the plan, agreement, 
or regulation, is to be entered in a book to be kept by the 
corporation, and the same shall be acknowledged by the 
trustees before mentioned, and certified by one of the Judges 
of the Greneral Court ; arid the same, so acknowledged and 
certified, shall be filed, by the trustees, with the Clerk of the 
County Court where the said church or congregation, or the 
greater part of them, shall reside, within six months thereafter. 



I judge, from an examination of the Journal ^ 2 
of Mississippi as late as 1847, that there is no Articles of 
statute of the State for the incorporation of reli- Association. 
gious societies. The first canon provides for the case in this 



246 ORGANIZATION" OF CHURCHES. 

manner : " Whenever any number of persons shall associate 
to form an Episcopal congregation, they shall adopt articles 
of association for their government, in which they shall ac- 
knowledge and accede to the constitution, canons, doctrine, 
discipline, and worship of the Protestant Episcopal Church in 
the United States, and the constitution and canons of the 
Episcopal Church in the diocese of Mississippi ; they shall as- 
sume a suitable name by which their church or parish shall 
be designated, and appoint not less than three nor more than 
eleven vestrymen and two wardens. 

A certified copy of the articles of association, and of the 
proceedings at their adoption, shall be laid before the conven- 
tion, and if approved by that body, delegates from that con- 
gregation or parish may take seats in the convention, and the 
congregation shall be considered as united, to the convention, 
and subject to its decision. 

Every parish so organized shall annually on Easter Mon- 
day, or as soon afterwards as may be, elect the same number 
of vestrymen, who shall, as soon as may be, upon their elec- 
tion, assemble and appoint two wardens, a register, and 
treasurer. 

It shall be the duty of the rector, agreeably to the ancient 
usage of the Church, to preside in all parish and vestry meet- 
ings ; bat in case of his absence, one of the wardens shall 
preside." 

The form of an organization of a parish is this : " We the 
subscribers, assembled for the purpose of organizing a parish 
of the Protestant Episcopal Church in the town of — , coun- 
ty of , and state of Mississippi, after due notice given, do 

hereby agree to form a parish, to be known by the name of 

church, and as such do hereby acknowledge and accede to 

the constitution and canons of the Protestant Episcopal Church 
in the United States of America, and the constitution and 
canons of the same Church in the diocese of Mississippi, and 



ORGANIZATION OF CHURCHES. 247 

we do accordingly now appoint [not less than seven, nor more 
than eleven persons, naming them,] to be the first vestrymen 
of the church, and [ten persons, naming them,] to be the first 
wardens, to continue in office until Easter Monday in the 

year , and until others be chosen in their place ; and an 

election of vestrymen shall hereafter be held on Easter Mon- 
day of each successive year, or as soon thereafter as may be. 
Witness our hands," &o. 

By the fourth article of the constitution of that diocese, 
new parishes may be admitted into union with the convention 
on motion by a majority of votes ; provided they shall have 
laid before the convention written evidence subscribed by the 
wardens and vestry that they are duly organized, and accede 
to the constitution and canons of the Church. 

The proceedings in Missouri appear also to be by articles of 
association. I have not found any statute of the state upon 
the subject. These articles are drawn up much in detail, and 
contain several important, and some admirable provisions for 
government. 

Jn two of the dioceses, (Illinois and Wisconsin,) there is 
an incorporation act of the state, and also a regular form of a 
parochial organization. In the former there is a statute for 
the incorporation of religious societies, [Revised Code, 120,) 
and by the third section of Canon 6, the vestry shall be con- 
sidered trustees of their respective churches in accordance 
with the provisions of that law. By the fourth Canon, the 
form of a parochial association is established. Each parish 
organized according to it is to report the fact to the secretary 
of the convention, certified by the minister under whose di- 
rection the organization took place. And by Canon 5, upon 
an application for admission into union with the Church, the 
vestry is to submit the certificate of organization signed by 
one of the wardens or the clerk of the vestry ; and also a 
certificate of the Bishop, or in case of his absence oi of a 



248 ORGANIZATION OF CHURCHES. 

vacancy in the Episcopate, of the major part of the Standing 
Committee, that he or they approve of the organization of 
such Church. {Journal, 1847, p. 13-14.) 

In the diocese of Wisconsin, the system of government is 
very complete. The constitution, after declaring the adher- 
ence of the Church in the diocese to the constitution and can- 
ons of the General Convention, provides for annual conventions, 
the members, president, and officers of the same, the mode 
of anting and determination, the Standing Committee, dele- 
gates to the G-eneral Convention, for a Special Convention, the 
election of a Bishop, admission of parishes and further altera- 
tion of the constitution. The canons regulate various matters 
of discipline, particularly the trial of a clergyman; and there 
is also the constitution of a parish, in which is a clause de- 
claring its recognition of the constitution and canons of the 
General and of the Diocesan Convention — providing for the uses 
of church buildings, the authority and duty of the rector and 
minister in various particulars, of the wardens, and vestry- 
men, the annual elections, vestry meetings, officers of the 
vestry, and for alterations. Many of these regulations are 
noticed in the course of this treatise. 



§ 3 - By the Statute of New- York, the persons quali- 

se- fled as mentioned in the act, shall in every yea r 

QUENT ELEO -',«'■,. -r-i 

after the first election, on the day in L aster week 

TIONS. J 

which has been fixed for that purpose, elect church- 
wardens and vestrymen. 

Whenever a vacancy shall occur before the stated annual 
election, by death or otherwise, the trustees {the vestry 
proper) shall appoint a time for holding an election to supply 
such vacancy, of which notice shall be given in the time of 
divine service, at least ten days previous thereto. 



ORGANIZATION OF CHURCHES. 249 

These annual elections must be holden immediately after 
morning service. The rector, if there be one, is to preside at 
these elections. If there be none, or he be absent, one of the 
churchwardens shall preside, receive the votes of the electors, 
and be the returning officer. The presiding officer must en- 
ter the proceedings in the book of minutes of the vestry, and 
sign his name thereto, and shall offer the same to as many of 
the electors present as he shall see fit, to be by them also 
signed and certified. 

The statute of 1819, before referred to, dis- 

QUALIFICATIOX 

pensed for the first election with the qualifications 0F V0TERS> 
prescribed in the act of 1813, but expressly pro- 
vided, that no person not possessing these qualifications should 
be permitted to vote at any subsequent election of wardens 
and vestrymen. 

The persons qualified are male persons of full age, who 
shall have belonged to the congregation or church for the last 
twelve months preceding the election, and shall have been 
baptized in the Episcopal Church, or shall have been received 
therein either by the rite of Confirmation, or by receiving the 
Holy Communion, or by purchasing or hiring a pew or seat in 
said church, or by some joint act of the parties and the rector, 
whereby they shall have attached themselves to the Protest- 
ant Episcopal Church. 

The qualifications are, therefore, 1st, The being of full 
age, belonging to the Church for the preceding twelve months, 
and baptism in the Church. 2d, The same extent of connec- 
tion with the Church, and if not baptized in it, then a recep- 
tion therein by confirmation, or communing, or purchasing 
or hiring a pew or seat, or some other joint act showing that 
the party has attached himself to the Church. 

In Maryland, by the Vestry Act, the elections 

J ' J J Times of 

are to be held on every Easter Monday, but if ELBCTIOHa 

Easter Monday is suffered to pass without an 

election, then it may be held on any other day appointed for 



250 ORGANIZATION OF CHURCHES. 

that purpose at any day after, although it may be in a sub- 
sequent year. 

Notice of such election must be given by the rector im- 
mediately after divine service, on two succeeding Sundays ; 
and if no rector, then by any two vestrymen, or of those per- 
sons who last possessed the powers of vestrymen, by writing 
set up at the door of the church ten days before the day of 
meeting. The qualifications of voters at any future election 
are the same as those prescribed for the first. 

So in this canon it is provided that in case there should be, 
from any cause, no election at such annual period, then the 
officers of such church or congregation shall hold over until 
the next annual election, or until a special election shall be 
called by such vestry, or church, or congregation, which may 
be done by notice to be given as in case of an election to fill 
vacancies. 

By the 15th section of the New- York Statute, no religious 
corporation shall be deemed to be dissolved for neglecting to 
hold elections on days before or after any moveable feast ob- 
served by such Church, the intervening time between such 
elections being more than a solar year. 

And by the 3d section of the act of February, 1826, it 
shall be lawful for the members of any church, congregation 
or society, qualified to vote for trustees, wardens, or vestry- 
men, or for a majority of them, at any stated annual meeting 
to appoint and fix any day in the succeeding year as the day 
on which the choice of officers of such church, congregation, 
or society shall be held ; and the elections held on that day 
shall be as valid for all purposes, as if the same had been 
made on the day formerly appointed for that purpose. 

By the 4th canon of Missouri, (1847,) the parishioners 
are to elect a vestry of not less than three, nor more than 
eleven members. Out of these the rector appoints a senior 
warden, and the vestry a junior warden. 



TRUSTEES OF A CHURCH. 251. 

In New Jersey, by Canon 6, any person of good general 
character may be eligible to office in any parish, or en1 tied 
to vote at an election of officers, who professes to adhere to 
the Protestant Episcopal Church, and contributes to its sup- 
port in the mode prescribed in his particular congregation, 
and who shall have been a worshipper in said church six 
months next before the election. 

The qualifications of voters in Maryland at all subsequent 
elections are the same as those required at the first. (See 
ante, p. 251.) 

TITLE III. 
THE VESTRY AS TRUSTEES — -POWER AND OFFICE. 

The election being duly had, certified and re- § 1- 
corded, the Statute of New- York proceeds to con- CoRPORATE 

.„, , CHARACTER. 

stitute a corporation as follows : " The churen- 
wardens and vestrymen so elected, of themselves, but if there 
be a rector, then, together with the rector of such church or 
congregation, shall form a vestry, and be the trustees of such 
church or congregation, and such trustees and their succes- 
sors shall thereupon by virtue of this act be a body corporate 
by the name or title expressed in such certificate." 

Two points of importance are here to be noticed. First, 
That if there is a rector, lie, with the wardens and vestry, 
constitute the vestry. Each and all must exist to form that 
body. If there is no rector, then the wardens and vestrymen 
form it. "With this the Statute of New Jersey exactly agrees. 1 

Next, These persons, that is, rector, wardens and vestry- 

1 •• The rector, wardens, and vestrymen appointed as aforesaid, shall 
be a body corporate and politic in law and in fact, to have continuance 
for ever under the same restrictions, and with the same righ - md privi- 
leges as are expressed in the act to incorporate trustees of religious 
societies, passed the 12th of June, 1799 — provided, n ivertJ sit ss, 
at any time the church be without a minister or rector, the 
and privileges shall be vested in the wardens and vest] jn 

The Statute of Wisconsin is the same in this particular as that of 
New -York. 



§2. 
General 
powers. 



252 TRUSTEES OF A CHURCH. 

men in one case, and wardens and vestrymen in the other, 
are the trustees of the church, and constitute the body cor- 
porate. 

By the 2d section of the vestry act of Maryland, the eight 
vestrymen chosen at the election, " with the rector of the parish 
for the time being, shall be deemed and considered the vestry 
of the parish for the ensuing year ; and the rector of the 
parish shall always be one of the vestry." In the ninth section 
they are designated as the trustees of the parish. 

The Act of 1785 of Virginia, and the ordinance of the con- 
vention, after that act was repealed, contained a similar pro- 
vision. See also the statute of the 3d of February, 1842. 

The statutes which create an incorporation 
either particularly of a vestry in cases of Episco- 
pal churches, or trustees generally, give the usual 
powers to take and hold real estate, to manage all the property 
and temporalities of the body, to have succession, and the 
other powers attendant upon the formation of a corporation 
aggregate. 

Thus by the Act of 1813 of New-York, (§4) the trustees 
of every church or society organized under it are authorized 
and empowered to take into possession and custody all the 
temporalities of such church, whether the same consists of 
real or persona! estate, and to hold and enjoy all rights and 
privileges, debts and demands, and all churches, meeting- 
houses, parsonages, and burying places, with the appurtenan- 
ces, and all estates belonging to such church or society, and 
to demise, lease, or improve the same for the use of such 
church or society, or other pious uses — also to repair and alter 
their churches and meeting-houses, and to erect others if 
necessary; to erect dwelling houses for the use of the minister, 
and school houses for the use of the church. They have also 
p. »wer to regulate and order the renting the pews, and the 
perquisites for breaking the ground in the cemetries or parish 



TRUSTEES OF A CHURCH. 253 

churchyards, and all other matters relating to the temporal 
concerns of such church or congregation. 

By the ninth section of the vestry act of Maryland, the 
vestry of each parish, for the time being, as trustees of the 
parish, shall have an estate in fee-simple in all churches and 
chapels, and in all glebes and other lands, and shall have a 
good title and estate in all other lands or property heretofore 
belonging to the Church of England, or which shall hereafter 
belong to the said Church, now called the Protestant Episcopal 
Church in Maryland ; and it shall be lawful for such vestry so 
to manage and direct all such property as they may think 
most advantageous to the interest of the parishioners ; and 
they shall also have the property in all books, plate, and other 
ornaments belonging to said churches or chapels, or any of 
them. 

The 28th section gives the right of succession, and of hold- 
ing lands and of leasing and managing them, and to take all 
money or goods given or bequeathed to them, provided the 
clear annual value shall not exceed $2000, exclusive of rents 
of pews, collections in churches, funeral charges, and the like. 

By the 2d section of the act of "Wisconsin, any church or 
corporation incorporated under it, shall have power to purchase 
and hold, or lease any real estate for the site of a church, or 
house of public worship, and suitable yards or grounds for the 
same, and for a parsonage and school house, and to erect all 
such buildings thereon proper and suitable for such church or 
house of worship and school house, and to purchase or take by 
gift or otherwise any real estate or other property, and to sell, 
dispose of and lease the same. The church is restricted from 
holding real estate, the annual value of which shall exceed 
five thousand dollars, except the site of the church, parsonage 
and school house. 

They shall also have power to sell, rent or otherwise dis- 
pose of all slips, pews or seats in such church, and to rent, 
17 



254 TRUSTEES OF A CHURCH. 

sell, or otherwise dispose of all the real estate of such church 
or congregation; to sue for all rents, demands or dues; and 
generally to manage all the fiscal affairs of the Church. 

And in New- Jersey, the act of June 1799, adopted in that 
of 1829, gives the trustees of a religious incorporation general 
powers to take and hold land, goods, &c, not exceeding 
$2000 in annual value, and to make such rules and ordi- 
nances and do every thing needful for the good government 
and support of the Church. 

By the common law, the fee of the glebe and 
Alienation l an ds °$ ^ le Church, vested in the incumbent, and 
of course his union in any alienation was indis- 
pensable. Justice Story, in Terry vs. Taylor, 1 thus states the 
law: "At a very early period the religious establishment of 
England was adopted by the colony of Virginia, and of course 
the common law upon that subject, so far as it was applicable 
to the circumstances of that colony. The minister of the 
parish was, duiing his incumbency, seized of the freehold of 
the inheritable property as emphatically persona ecclesice, and 
capable, as a sole corporation, of transmitting that inheritance 
to his successors.'* It was decided in the case, that as there 
was no statute which invested the fee in the vestry alone, 
they could not alien without the rector's consent, and a sale 
could not be made unless he joined in it. 

There were, however, at the common law, some restraints 
upon the general power of alienation. A rector could not convey 
without the consent of the Bishop and the patron ; and the 
Bishop could not do so without the assent of his chapter. 2 

These restraints proving insufficient, further restrictions 
were imposed in a series of statutes passed in the reigns of 

1 Wheaton's Rep., 206. 

1 See the Constitution of Langton cited 2 Burns, 208; 1 Ins., 144, 
and 3 Cose, 75. The rules of the canon law were very express and 
guarded upon this subject. See Van Espen De Admin et Alienatione, 
Tomel, Tit. 36. 



TRUSTEES OF A CHURCH. 255 

Elizabeth and Edward the Sixth. In substance these limited 
alienations to leases for a definite period, either of 21 years 
or for three lives. 

In the case of St. Peter's Church vs. De Ruyter, (3 Bar- 
bour's Ch. Rep., 121,) Chancellor Walworth held— That by 
the common law corporations aggregate, ecclesiastical as well as 
lay, had the same right to alienate real estate which they 
had the capacity to take and hold, and for the same purposes 
and objects as natural persons. 1 

That the English statutes restraining this right, and limit- 
ing the duration of leases, formed part of the law of England 
at the time of the settlement of the state, under the charter of 
the Duke of York, and probably formed part of the law of the 
colony brought by the colonists with them. 

That it must have been considered that the law of such 
restrictions prevailed in the state from the fact, that by a 
section of the act of 1787, it was made lawful for the chan- 
cellor of the state, if he thought proper upon the application 
of any religious incorporation, to make an order for the sale 
of any real estate belonging to such corporation, and to direct 
the application of the monies arising therefrom to such uses 
as the said corporation, with the consent of the chancellor, 
should consider to be most for the interest of the society. 

I may take the liberty of observing upon this point of the 
learned chancellor's decision, that the opinion of the profession 
in New- York has generally been, that this section of the stat- 
ute was not a mode of liberating these corporations from re- 
strictions, but a mode of restraining what otherwise would 
be an unlimited power of alienation . 

In many of the dioceses the mode of alienation has been 
made the subject of special provision. 

In Maryland, the 29th section of the vestry act provides 

1 Kent's Com.. 281. 



256 TRUSTEES OF A CHURCH 

that no vestry shall sell, alien or transfer any of the estate or 
property of the Church without the consent of five at least of 
their body, of which number the rector shall always be one, 
together with the consent of both churchwardens, and in case 
there be no rector, then the consent of the Bishop must be 
obtained. 

By the 8th of the Articles of Association of Missouri, no 
conveyance of any lands or tenements belonging to a parish 
or association shall be made without a vote of the vestry, 
two-thirds being present and concurring. 

The act of the legislature of Illinois (Revised Code, p. 
120) directs that the trustees may sell and dispose of the real 
estate belonging to the church, except such has has been 
specially devised or given to it for pious purposes. 

In New Jersey, the act of the 12th of June, 1799, adopted 
in that of 1829, gives to the trustees of a religious incorpora- 
tion power to acquire, receive, have, and hold, any lands and 
tenements, goods and chattels, not exceeding the annual value 
of $2000, and the same, or any part thereof, to sell, assign, 
dispose of, and alien. 

But I apprehend in that state no alienation would be valid 
without the union of the rector. By the act of 1829, when 
there is a rector, he, w r ith the w r ardens and vestrymen, con- 
stitute the Board of Trustees, in which Board is vested the 
power of disposition. 

By a provincial statute of Massachusetts, 28 Geo. II., cap. 
9, re-enacted in 1786, no alienation of parsonage lands is 
valid in the case of a minister of an Episcopal church, with- 
out the consent of the vestry. 1 

And the regulation in Virginia (Canon 17) is, that the 
vestries shall hold all glebes, lands, parsonage houses, 
churches, books, plate, or other property now belonging, or 
hereafter accruing to the Protestant Episcopal Church of the 

1 2 Mass. Rep, 500, Weston vs. Hunt. 



TRUSTEES OF A CHURCH. 257 

Diocese of Virginia, as trustees for the benefit of the parish or 
church for whose use the same were, or shall hereafter be 
purchased, or otherwise obtained, and may improve, demise, 
or otherwise dispose of the lands or houses allowed for the 
minister's habitation or use, with the minister's consent ; if 
there be no minister, with the consent of the Bishop, or in 
case there be no Bishop, and the Episcopal office be vacant, 
then not without the consent of the Standing Committee. 
But when there are trustees, under the act of the legislature 
passed Feb. 3, 1842, authorised to hold real property, such 
real property shall not be subject to the provisions of this 
canon. 

The right and power of the trustees of a church 
over the pews has been discussed and judicially r ight over 
determined in several cases, especially in New- pews. 
York. The conclusions appear to be these : 

That the right of property in the pews of a church vests 
in the trustees, the right of use and occupation at all custom- 
ary times being in the purchaser. The latter may maintain 
an action on the case for a disturbance of this right. The 
power of destroying the pew when necessary for carrying out 
proper reparations of the church is in the trustees; and they 
may sell the church without the owner of the pew being able 
to prevent it, and the question of remuneration, or an equiva- 
lent right to a pew in a new church, if erected, must be left 
to subsequent adjustment. 1 

In the case in. Vermont, cited in the note, a distinction is 
taken, that where the house of worship is taken down for 
convenience or taste, the pew-holder is entitled to compensa- 
tion ; but if taken down as matter of necessity, because it has 

1 Kearny vs. St. Peter's Church, 2 Edw. Rep. 612. In the matter of 
the Brick Presbyterian Church, 3 Edward's Rep. 156. Bronson vs. 
Wood, Sup. Ct., N.York, 7 Jud. District, Sept. 1, 1849, Law Reporter, 
Boston. Kellogg vs. Dickinson, 18 Vermont Rep. 266. Daniel vs. 
Wood, 1 Pick. 102. 



V 



258 TRUSTEES OF A CHURCH. 

become ruinous, and unfit for the purposes, no compensation 
is to be made. 

In Bronson vs. "Wood, the trustees of St. Peter's Church, 
Auburn, had granted and sold a pew by its number to Wood ? 
his heirs and assigns. The court observed, that although its 
language would import a conveyance in fee simple, such a 
conveyance would be void, as the trustees had no power to 
make it ; they could only, under the statute, demise, lease, 
and improve the same — and have power to regulate and order 
the renting of the pews. The pew-holder acquires a right of 
possession, so that he can maintain trespass against an intru- 
der ; but this right of possession is in subordination to the 
more general right of the trustees in the soil and freehold. 1 

§ 5. It has been decided in New-York, that where 

Vaults, the corporation possesses land for the purposes of a 

cemetry, the trustees may remove the bodies of the dead, and 

cannot be prevented upon the application of relatives. (Winaf 

vs. German Reformed Church, Band's Ch. Rep., 474.) 

By an act of the legislature of 1842, no religious incorpo- 
ration can mortgage any burying ground without the consent 
in writing of three-fourths of the congregation or society ; and 
the like consent is required upon a sale before any human re- 
mains can be removed from any burying ground which has 
been used as such within three years. 

Where, however, the form of the conveyance of a vault 
was such as to pass a right to the land, and not to confer a 
mere temporary use and privilege to construct vaults, the pro- 
perty could not be sold without the consent of the vault 
owners. (In the matter of the Presbyterian Church, 3 Ed- 
wards, Rep. 168.) 

By the 3d section of an act passed March 30, 1850, it 
was enacted that the authority given by the " act concerning 

1 See also Presbyterian Church vs. Andrews. Zabriskie's JSf. Jersey 
Rep., 330. 



TRUSTEES OF A CHURCH. 259 

the acquisition of burial places by religious corporations in 
the city of New- York," passed April 11, 1842, to purchase, 
acquire, and hold land for the purpose of a burial ground or 
cemetery, and to erect thereon suitable buildings for purposes 
connected with the burial of the dead, is hereby extended to 
religious corporations in every part of the state, and such pur- 
chases heretofore made or hereafter made in the city of New- 
York or elsewhere, and the erection of buildings thereon as au- 
thorized by the said act, are hereby confirmed and declared 
valid, notwithstanding any restriction contained or supposed 
to be contained in the " act to provide for the incorporation of 
religious societies," passed April 5, 1813, or in any special 
charter of any such corporation. 

The members of the vestry hold their office in § 6 - 

New-York until the expiration of the year for EMmE 0F 

Office, 
which they shall be chosen, and until others are 

chosen in their stead. In New-Jersey, the first eight sections 

of the act of 1799, are by the act of 1829 made applicable to 

the Protestant Episcopal Church. By the 4th section, a new 

election may be had upon the same notiee as is prescribed for 

the first elections, either to fill up vacancies, or for the election 

of all or any new trustees in place of the others, or of any of 

them. 

The statute of Wisconsin is the same as that of New- York. 

The articles of association in Illinois contain a clause that 
the vestry annually elected shall continue in office until their 
successors be chosen. That of Missouri is substantially the 
same. 

"No meeting of the board of trustees shall be 
had unless at least three days notice shall be given meetings of 
in writing under the hand of the rector, or one of the Vbstet. 
the churchwardens." ! 

1 Act of 1813, M* 



260 TRUSTEES OF A CHURCH, 

In Wisconsin, quarterly meetings are to be held on the first 
Mondays of May, August, November, and February ; and 
special meetings may be called at such time as the minister 
or any two of the members may desire. 

So in Maryland, under the vestry act, regular meetings 
are held on the same days as in Wisconsin ; and by the 24th 
section of that act, special meetings may be called by the 
rector when necessary, but if there be no rector, or he be 
absent, or refuse, or neglect to call a meeting, then any two 
of the vestry may summon it. 

A very important provision is found in the statute of New- 
York, which I do not trace in any other state or diocese. No 
board of trustees shall be competent to transact any business 
unless the rector, if there be one, and at least one of the 
churchwardens, and a majority of the vestrymen be present, 

In Wisconsin, the provision is that " no such board shall 
be competent to transact any business, unless the rector, or 
one of the wardens and a majority of the vestrymen be 
present." {Act of 1847, § 1.) 

By the vestry act of Maryland, any four vestrymen to- 
gether with the rector, if he shall attend, if not, any four 
without him, shall be a sufficient quorum for the transaction 
of any business whatever, which they are authorized to do by 
the act, and whatever shall be thus done by a majority of 
such quorum, or of the members attending, if more than 
above directed, shall be valid and obligatory as if done by the 
whole vestry ; provided that due notice of all adjourned and 
special meetings shall be given to all the members of the 
vestry. (§ 7.) 

§ 7. By the 10th section of the act of 1813, every 

Duty as religious incorporation in New- York, Albany and 

Schenectady, was directed to render an account 

and inventory of their property, every three years, to the 

chancellor or one of the justices of the Supreme Court. By 



TRUSTEES OF A CHURCH. 261 

the 1st section of the act of March 30, 1850, no church or reli- 
gious society now incorporated shall be deemed dissolved, nor 
shall any of its rights or privileges be impaired or affected by 
reason of the trustees or other persons entrusted with the 
management of its temporalities, having omitted to exhibit an 
account and inventory of the real and personal estate belong- 
ing to said church or society, or of the annual income, or reve- 
nue arising therefrom, and any forfeiture incurred by reason 
of any such omission is hereby waived and discharged ; and 
no such account and inventory shall hereafter be required 
from auy incorporated church or religious society, unless the 
annual income of its property shall exceed six thousand 
dollars. 



An important provision was adopted in the statute of 
March, 1850 : " Whenever any religious incorporation incor- 
porated under the c act to provide for the incorporation of reli- 
gious societies,' passed April 5, 1813, or by any special charter, 
shall deem it necessary or expedient for the accommodation of 
its members, in consequence of their numbers or dispersed 
habitations or otherwise, to increase the facilities for public 
worship, the vestry or trustees thereof may purchase and hold 
grounds in the same village, town or city, and may erect 
thereon suitable associate meeting houses or churches, or con- 
venient chapels, or may hire or purchase and hold any such 
ground with suitable buildings already erected thereon for the 
like purpose, notwithstanding any restriction contained or 
supposed to be contained in the said act, or in any such char- 
ter, and the persons statedly worshipping in any such asso- 
ciate meeting-house or church, or in such chapel, may, with 
the consent of the vestry or trustees of said corporation, be 
separately organized and incorporated." 



262 THE RECTOR. 

TITLE IV. 
THfi RECTOR. 

In the present connection, nothing is properly to be con- 
sidered except the powers and rights of the rector in connec- 
tion with the temporalities of the church or parish, the use of 
the building, &c, and the management of its secular affairs. 
Many of these topics are necessarily discussed under other heads. 
§ L The right of presiding at a vestry meeting is re- 

cognised in the statutes of various states, and in 

PRESIDE. ° 7 

the canons of most of e the dioceses. It may be 
stated as a universal rule. 

By the provision of the Statute of New- York, the rector, 
if there be one, and if not, then the churchwarden present, or 
if both the churchwardens be present, then the churchwarden 
who shall be called to the chair by a majority of voices, shall 
preside at every meeting of a board, and have a casting vote. 
1, Act 1813.) 

In Maryland, the rector shall preside in the vestry, collect 
the votes, and shall, upon an equal division of those present, 
have a vote, except where he is in any manner particularly 
interested. 1 In Ohio, his right to preside is implied in the 
2d canon of 1847. In Mississippi, and other dioceses, it is 
recognized in the canons. 

The right of presiding at a meeting of parishioners in 
vestry assembled is an undoubted rule of the English law, 
This was the subject of an elaborate decision of Sir John M- 
chol in Wilson vs. Mackmatho. (3 Phillimore 67.) 

" The minister is not, in consideration of law, a mere in- 

) dividual of a vestry ; nor is he in any instance so described. 
On the contrary, he is always described as the first, and as 

1 $ 8, Act of 1798. The 6th section of the 9th Canon of Virginia is 
exactly the same. The 1st section of the 3d Article of Wisconsin is as 
follows : The rector is ex-officio president of the vestry and of the con- 
gregation, and has the casting vote in case of a tie. on all questions 
brought before it. 



THE RECTOR. 263 

an integral part of the parish. The form of citing a parish 
proves this position, namely, l the minister, churchwardens 
and parishioners,' he being specially named." 

" So far, therefore, from being a mere individual, the proper 
description of a parish in vestry assembled is, " the minister, 
churchwardens and parishioners in vestry assembled." The 
minister is denominated the rector parochice, the prceses ec- 
cclesiasticus. The vestry is an ecclesiastical meeting of an 
ecclesiastical district, namely, a parish — it is held in an ec- 
clesiastical place, in the church or in a room which is part of 
the church, part of the consecrated building, from which the 
meeting itself takes its name of vestry, as being held in the 
room where the priest puts on his vestments. It meets for an 
ecclesiastical purpose ; for though the sustentation of the poor 
has become of modern times more of a [temporal concern, yet 
anciently it was a matter immediately of ecclesiastical duty 
and superintendence. 

In these meetings, then, of the parish, assembled in the 
church for an ecclesiastical purpose, that the rector parochice 
should not preside, but be considered as a mere individual 
would be most strangely incongruous ! On sound legal 
principle, he is the head and prceses of the meeting. 

To pronounce, then, against a right thus founded in usage, 
and supported by reason, convenience and propriety, would 
require some very clear and decided authority negativing the 
right, and establishing a different rule." See also Baker vs. 
Wood, 1 Curteis 522, and Rex vs. D'Oyly, 4th Perry & 
Davison, 58. 

While it may be stated as a general rule, that 

the title and legal estate, with the collection and 

Right to the 
enjoyment of the rents and profits, is in the vestry GLEBE &c 

acting in most dioceses as trustees under an act of 

incorporation, it remains to be seen what are the particular 



264 THE RECTOR. 

rights of the rector or minister in the property of the church, 
or in the church edifice, or the appurtenances. 

These may sometimes conflict with the general right and 
power of the vestry. 

In some of the dioceses, there are special regulations upon 
this subject. 

By the loth section of the vestry act of Maryland, the 
vestry may choose one or more ministers to officiate, for such 
time as they shall think proper, and may agree and contract 
with such minister for his salary, and respecting the use and 
occupation of the parsonage-house, or any glebe or other land 
or property belonging to the parish, and on such terms and 
conditions as they may think reasonable ; and their choice and 
contract shall be entered among their proceedings. By the 
10th section, if any rector shall commit waste on any glebe- 
land, or other land belonging to the vestry of his parish, or if 
he shall do any injury to the parsonage, or to his parish-library, 
he shall be liable to pay treble damages, to be recovered of 
him by the vestry in their corporate name, in the same man- 
ner as if he was not one of the vestry. 

The second section of the third article of the constitution 
of a parish in Wisconsin provides, that the churchbuilding 
shall be open to the minister for public common prayer, cate- 
chetical or other religious instruction, for marriages, baptisms, 
funerals, and all other rites and ceremonies authorized by the 
Protestant Episcopal Church, at such times as he may deem 
proper. 

It appears to me that a true rule is stated in a decision 
reported by Dr. Hawks, as having taken place in Virginia in 
the year 1748. Under an act of 1727, " every minister re- 
ceived into any parish by the vestry " was entitled to his salary. 
The usual mode of proceeding was for the vestry to receive 
some clergymen recommended by the commissary and go- 
vernor. 



THE RECTOR. 265 

By direction of the vestry of Lunenburg parish, an in- 
dividual entered upon the glebe lands contrary to the wishes 
of the incumbent, the Rev. Mr. Kay. The latter brought an 
action of trespass against the intruder, and in 1784 the suit 
came before the general court for judgment upon the single 
point whether the bare reception of a minister by the vestry 
under the act of 1727, there having been no formal induction 
in the case, would enable the minister to sustain an action of 
trespass against one who entered on the glebe lands by order 
of the vestry. Judgment was finally rendered for Mr. Kay on 
this point, but it was by a divided court. 

The phrase made use of in the statute of New- York, is 
that the vestry shall have power to call and induct a rector 
to such church or congregation as often as there shall be a 
vacancy therein. I apprehend that this phrase is used in the 
sense which it had received in the practice of the colony of 
New-York. The governor issued a letter of induction after a 
minister had been called to a church : and the legislature in- 
tended to substitute the vestry for the governor. 1 

It cannot be necessary for a compliance with the statute, 
that the formal proceedings of an induction should be pursued. 
It is presumed that a delivery of possession, or acquiescence 
in its being taken, will suffice. 

The call then — the actual use of the church for the ap- 
pointed services — the actual occupation of a parsonage or 
glebe would, it is presumed, be equivalent, in a civil tribunal, 
to an induction attended with all its formalities ; and what- 
ever rights such an induction would have conferred, will be 
possessed without it. 

Difficulties may attend the solution of various questions 
connected with this subject. It is thought, however, that 
some general principles are warranted by the law as it stands, 
and will furnish a safe guide. 

1 See Dr. Berrian's History of Trinity Church, p. 69-75. also p 160. 



266 ■ WARDENS AND VESTRYMEN. 

The law of the Church at large, and especially the law of 
the Church of England, the common law itself, vested the 
right over the church edifice and its employment, in the rec- 
tor. The authority of churchwardens was subordinate to his. 1 
When the Church avails itself of an act of incorporation, or 
other statute of the civil power, it is bound to take it in its 
true extent and meaning, but no further. The title, then, to 
the church, and all church property, is in the trustees, collect- 
ively, for all corporate purposes ; but there is another class of 
purposes purely ecclesiastical, as to which the statute did not 
mean to interfere or prescribe any rule. These are to be con- 
trolled by the law of the Church. 

One conclusion seems, for example, deducible from these 
principles — that the control and possession of the church edi- 
fice upon Sundays, and at all times when open for Divine 
Services, appertains exclusively to the rector. This, it seems 
to the author, is implied in his call, essential to his office, and 
must be paramount. 



TITLE V. 
WARDENS AND VESTRYMEN. 

Wardens and vestrymen are repeatedly referred to in the 
canons of the General Convention, and in almost every dio- 
cese are constituent parts of the organization of a church. 
Indeed, in several dioceses, a church cannot be organized for 
legal purposes, or be admitted to union with a convention, 
without wardens and vestrymen. Such is the case in New- 
York, Western New- York, and Wisconsin. The Statute of 
New- York requires a vestry for the act of incorporation, and 
the union with the Diocesan Convention depends upon the 
production of a certificate of such incorporation. So in nu- 

1 Lee vs. Matthews, 3 Haggard, p. 173. 1 Lee's Rcjx, 129. Hutch- 
ins vs. Denziloe, 1 Hagg. C. iv., 173. 

I 



WARDENS AND VESTRYMEN. 267 

merous instances the delegates to a convention must be chosen 
by a vestry, although there are cases in which this does not 
necessarily imply wardens as well as vestrymen. 

Bishop Jarvis of Connecticut, in his address to the con- 
vention of 1807, says, that " a practice had been introduced 
of choosing a committee to supply the place of wardens and 
vestry ; and in the room of parish, of substituting the word 
society. I have before observed, that as far as the law extends 
to us, the wardens and vestry have all the powers of what is 
termed a Society's Committee. As these are, therefore, the 
ancient ecclesiastical officers of a parish, to substitute a com- 
mittee in their stead is to needlessly change the principles of 
the Church, and to adopt those which are independent and 
congregational." {Journal Connecticut, 1807.) 

In New Jersey, in the year 1804, Dr. Croes, afterwards 
Bishop of that diocese, in conjunction with the Rev. Andrew 
Fowler, made a report upon the duties of churchwardens and 
vestrymen, which Bishop Doane speaks of as embodying the 
whole practical wisdom of the subject. In that report, the 
duties of these officers are minutely set forth, and will be 
hereafter adverted to. At some period between that year and 
1811, a resolution was adopted which was in force in 1827, 
and I believe now prevails, to the following effect : " That in 
the opinion of this convention, the regular mode of church 
government of congregations in the Protestant Episcopal Church 
is by a body composed of a minister, (styled in this state a 
rector,) churchwardens, and vestrymen. And this formality 
of two wardens and a vestry will be expected of all congrega- 
tions which shall hereafter apply to be admitted in convention. 1 

The duties of churchwardens, and their office § i. 
in the Church of England, are thus described by Wardens. 
Lord Stowell : 3 " I conceive that their duties were originally 

1 See Journal of 1827. 

2 St. Lee's Reports, 129. 



268 WARDENS AND VESTRYMEN. 

ocnfined to the care of the ecclesiastical property of the parish, 
and over which they exercise a discretionary power for certain 
purposes. In all other respects it is an offioe of observation and 
complaint, but not of control with respect to divine worship. 
So it is laid down in Ayliffe, in one of the best dissertations 
on the duties of churchwardens, and in the canons of 1691. 
In these it is observed that the churchwardens are appointed 
to provide the furniture of the church, the bread and wine of 
the holy Sacrament, the surplice and the books necessary for 
divine worship, and such as are directed by law ; but it is the 
minister who has the use. 

" If the minister introduces any irregularity into the ser- 
vice, they have no authority to interfere, but may complain 
to the Ordinary. I do not say there may not be cases in 
w T hich they would be bound to interpose. In such cases they 
may repress, and ought to repress, all indecent interruptions 
of the service, and are the most proper persons to repress 
them, and they desert their duty if they do not. And if a 
case could be imagined in which even a preacher himself was 
guilty of an act grossly offensive, either from natural infirm- 
ity or disorderly habits, I will not say that the church- 
wardens and even private persons might not interpose to pre- 
serve the decorum of public worship. But that is a case of 
overbearing necessity that supersedes all ordinary rules. . . . 
They have only custody of the church under the minister. If 
he refuse access to the church on fitting occasions, complaint 
must be made to higher authority. Churchwardens are the 
guardians and keepers of the church, and representatives of 
the body of the parish." 1 

By the fourth article of the constitution of a parish in 

1 See also Lee vs. Mathews, 3 Hagg. Rep. 173. By one of the laws 
of the Duke of York. 1664. churchwardens were to present to the ses- 
sions, at a fixed period, all offences which had come within their 
knowledge — profaneness, Sabbath breaking, and other sins. (Collect. 
N. Y. Hist. Society, vol. 2, p. 334.) * 



WARDENS AND VESTRYMEN. 269 

"Wisconsin, it is recommended that the wardens, as advisers 
of the minister, be communicants. They are to have a care 
that the church building be kept from all secular or other uses 
not authorised by the second article, and that it be kept in 
good repair, as becometh the house of Grod. 

The wardens, according to seniority, are to preside at all 
meetings of the vestry and of the congregation ; and by the 
fifth section, they are to give notice to the Bishop of any of- 
fence of a clergyman. 

In the report made to the Convention of New Jersey be- 
fore mentioned, the duties of wardens and vestrymen are thus 
stated : 

" The duties of churchwardens are: 

1. To provide for the churches of which they have the 
care, a Prayer-book and Bible of suitable size at the expense 
of the parish. 

2. To make the collections which are usual in the parishes. 

3. To provide, at the expense of the congregation, a suffi- 
cient quantity of fine white bread, and good, wholesome wine, 
for the celebration of the Lord's Supper. 

4. To provide a proper book, at the charge of the parish, 
in which shall be written by the rector, or in case of vacancy 
by one of the wardens, the name of every person baptized, 
married and buried in the church, and the time when such 
baptism, marriage and burial took place. 

5. To present to the Bishop of the diocese, or, if there is 
no Bishop, to the chairman of the Standing Committee of the 
Church in the state, every priest and deacon residing in the 
parish to which they belong, who has voluntarily relinquished 
his sacerdotal office, and uses such employments as belong to 
laymen. 

6. To take care that the church of which they have the 
charge be kept in good repair, well glazed, and free from 
dirt and dust, as becomes the house of Grod ; that the church- 

18 



270 WARDENS AND VESTRYMEN. 

yard be decently fenced, and to cause that order be preserved 
during divine service. 

7. To diligently see that the parishioners resort to church 
on Sundays, and there continue the whole time of divine ser- 
vice ; and to gently admonish them when they are negligent. 

8. To prevent any idle persons continuing in the church- 
yard or porch during divine service, by causing them ''either 
to enter the church or depart — and to prohibit the sale of any- 
thing in the yard. 

[9. To give an account to the corporation of the church, if 
it has no treasurer, at the expiration of each year, of the 
money they have received, and what they have expended in 
repairs, &c. ; and when they go out of office, to give a fair 
account of all their money transactions relative to the church, 
and deliver up to their successors the church property in their 
possession. 

The duties of vestrymen, or trustees, are : 
To transact all the temporal business of their respective 
churches — to collect the monies stipulated to be paid to the 
minister ; and, at the expiration of any year, if there be a de- 
ficiency of the sum requisite, to give information thereof to 
the congregation, convened for that purpose, and, if necessary, 
to enforce the payment of the sum deficient ; also, in the ab- 
sence of the wardens, to do the several duties which are more 
particularly assigned to them." 

It will be remembered that in England, except 
Vestrymen m cases °f special custom, there is no regular dele- 
gated body known as a vestry. All the parishioners, 
when convened in a manner prescribed, and for parish pur- 
poses, are described as assembled in vestry. 1 

There were, however, excepted cases of select vestries, 
consisting of a limited number of persons chosen by the ratea- 

1 Wood's Inst.j 90. 2 Phillimore's Rep., 373. Adam's Rep., 139. 



WARDENS AND VESTRYMEN. 271 

ble parishioners. 1 This was the case in London. 2 In an act 
of parliament (9 Ann, cap. 22) for erecting new churches 
near London, a similar system was adopted ; and in the late 
act of 2 and 3 Victoria, it is allowed as to all parishes, and 
prescribed as to some. 

In the colonies, the method of the parishioners acting 
through a select delegated body, was used at the earliest pe- 
riod. In New- York, for example, by the Duke of York's laws 
of 1664, it was provided that for the orderly management of 
all parochial affairs, eight of the most able men of each parish 
be chosen by the major part of the householders to be over- 
seers, out of which number, the constable and such eight 
overseers shall yearly make choice of two to be church- 
wardens. 

And in the act of 24 March, 1693, we find that the min- 
isters are to be called to officiate by the vestrymen and church- 
wardens respectively. In the four counties of New- York, 
Westchester, Richmond and Queens, the justices were to 
summon the freeholders to meet for the purpose of choosing 
ten vestrymen and two churchwardens. 

In Maryland, by an act of 1692, the free-holders of each 
parish were to meet and elect six vestrymen, who were made 
bodies corporate to receive and hold property, with power to fill 
all vacancies. (Hawks' Cont. vol. 2, p. 71.) In 1779, an act 
to establish select vestries was passed, which was repealed by 
the act of November, 1798, next mentioned. 

The latter statute is now in force, and is recognized by the 
convention of the diocese as part of its system of Church go- 
vernment. Its provisions are numerous and greatly in detail ; 
many of which have been before noticed. 

1 Gibson's Codex. 262. Grey's System, p. 88. 2 Strange, 728. 
3 Statute 15, Car. 2, c. 5. See also the Braintree Election Case, 4 
Moor's Privy Council Rep. 



272 ITNIOtf WITH A CONVENTION. 

So in Virginia, vestries were part of the Church organiza- 
tion at a very early date. 1 

§ s - In Maryland, the vestrymen are to be elected 

out of the persons qualified to vote. (§ 1, Act of 

OF 

Vestrymen. 1798.) 

In New Jersey, by Canon YI, any person being of good 
moral character may be eligible to office in any parish, or en- 
titled to vote at an election of officers, who professes to adhere 
to the Protestant Episcopal Church, and contributes to its 
support in the mode prescribed in his particular congregation? 
and who shall have been a worshipper in said Church six months 
next before the election. 



TITLE VI. 
UNION OF A CHURCH WITH THE CONVENTION. 

The regulations in the different dioceses upon this subject 
are very similar. That of Illinois may be taken as an ex- 
ample : 

" To entitle a church hereafter to admission into union 
with the Protestant Episcopal Church in this diocese, it shall 
be required that the vestry submit to the convention, or to a 
committee appointed by it, the certificate of organization, 
signed by one of the wardens, or the clerk of the vestry. 

" Every organized church, applying for admission into 
union with the convention of this diocese, shall also produce 
to the convention a certificate of the Bishop, or in case of his 
absence, or of a vacancy in the Episcopate, of the major part 
of the Standing Committee, that he or they approve of the 
organization of such church." 

The article in Missouri is nearly the same ; requiring, 
however, that notice should have been given to the Bishop or 

1 See for example the form of a letter of induction about 1642, in 
Dr. Hawks Co»£., vol. 1, p. 54. 



UNION WITH A CONVENTION. 273 

Standing Committee, of the organization having taken place, 
three months previous to the convention. 

The 12th article of the- constitution of South Carolina 
directs, that " whenever a church or congregation, not now 
entitled to a representation, shall be desirous of uniting with 
the convention of the Church in this diocese, they shall apply 
by letter to the Bishop, or when there is no Bishop, or he be 
absent, to the Standing Committee, stating the due organiza- 
tion of the church, the election of vestrymen and church- 
wardens, their means or prospects for the support of a minis- 
ter, and their willingness to conform to the constitution and 
canons of the General Convention, and the constitution and 
canons of the convention of this diocese, which are now, or 
may hereafter be enacted by authority of the same. And, at 
the convention next succeeding the receipt of such application, 
the Bishop or Standing Committee shall communicate the 
same to the convention for their decision therein. Should the 
convention make a favorable decision, the church shall then 

be considered as in union." 

avcn 
It was before shown, that the legislature, -eve* since the 

Revolution, exercised the power of dividing and annexing 
parishes, or parts of them. I am not aware of any ecclesias- 
tical regulation in that diocese, which bears upon this subject, 
except this canon.. 

By the 15th canon of the diocese of Pennsylvania, the 
articles of organization, or the charter, if any, are to be sub- 
mitted to the Bishop and Standing Committee, prior to an 
application for admission into union. The approval by both, 
of the articles or charter, is necessary. If he or they disap- 
prove them, their reasons are to be stated to the convention. 
The whole matter and the documents are referred to a com- 
mittee, who are to report thereon to the convention, for its 
final determination. 

The canon of Ohio directs a notice to be given to the 



274 UNION WITH A CONVENTION. 

Bishop, at least one month before the convention, of the or- 
ganization having taken place, but does not require that the 
approval of the Bishop should accompany the application for 
admission. 

In several dioceses, also, even such a notice is not required. 
Thus, in Mississippi, a certified copy of the articles of associ- 
ation, and of the proceedings at their adoption, shall be laid 
before the convention, and, if approved by that body, dele- 
gates from that congregation or parish may take seats, and 
the congregation shall be considered as united to the con- 
vention. The provisions in Louisiana and Massachusetts are 
similar. 

By Canon 4 of Western New- York, " To entitle a church 
to admission into union with the Protestant Episcopal Church 
in this diocese, it is required that there be submitted to the 
convention of the same, at a stated meeting : 

" 1. A certificate from the Bishop, or in case of his ab- 
sence, or of a vacancy in the Episcopate, of a major part of 
the Standing Committee, that he or they did, on notice thereof 
previously given, approve of the incorporation of such church. 

" 2. The certificate of incorporation, duly proven and re- 
corded, or a copy thereof, certified by the clerk of the county." 

The 4th canon of the diocese of New-York is as follows : 

" § 1. To entitle a church to admission into union with 
the Church in this diocese, it shall be required that the vestry 
submit to the convention, or to a committee appointed by its 
authority, the certificate of incorporation, duly recorded, or a 
copy thereof, certified by the clerk of the county. 

" § 2. Every incorporated church, applying for admission 
into union with the convention of this diocese, shall also pro- 
duce to the convention a certificate of the Bishop, or in case 
of his absence, or of a vacancy in the Episcopate, of the major 
part of the Standing Committee, that he or they approve of 
the incorporation of such church." 



UNION WITH A CONVENTION. 275 

Prior to the year 1825 there was no such provision in New- 
York. The course was pursued of a direct application to the 
convention for admission. Thus in 1796, several churches 
were admitted upon petition of the churchwardens and vestry- 
men. 

In 1793, a memorial was presented by the trustees of a 
society composed of former members of Trinity Church, but 
since separated, stating that they had erected a house of 
public worship, and praying to be admitted into union. 1 

The vestry of Trinity Church had remonstrated against 
this admission. In 1794 the application was renewed and 
again rejected. In 1801, upon the renewed memorial of the 
corporation of Christ Church, it was resolved that the conven- 
tion could not with propriety act upon it, while the Church 
was destitute of a Bishop. And in 1802, it was further re- 
solved, that when the Bishop shall express to this convention 
that he is satisfied with the acknowledgments made to him by 
the rector and congregation of Christ Church, that they be re- 
ceived into communion with the Church. At a subsequent 
day, the Bishop declared his satisfaction, and the rector and 
delegates were admitted. 

*In 1825, a canon was passed as follows : " Whereas the due, 
regular, and discreet admission of churches into union with 
this convention is of importance to the peace and welfare of 
the Church in general, it is hereby ordained, that from and 
after the final adjournment of the present convention, it shall 
be and it is hereby made requisite for every body corporate 
applying for admission into such union, to produce to the con- 
vention a certificate of the Bishop, or in his absence, or if the 
Episcopacy is vacant, of the Standing Committee, that he or 
they have approved of the said incorporation." 

Since 1825, the course of proceeding has been for the con- 
vention to appoint a committee on the incorporation of 

1 Journal of Convention, 1793, p. 68. — Onderdonk's Ed. 



276 UNION WITH A CONTENTION. 

churches, which examines the certificate of the record and 
the approval of the Bishop. In general, if they are found 
correct, the report for admission is made. The circumstances 
of any special ease would be specially reported upon. 

It was before noticed that in Maryland it had been formally 
determined that the act of incorporating under their statute 
gave no right of itself to an admission into union. 1 A similar 
decision was made by the Standing Committee of New-York, 
in the year 1850, in the case of Christ Church, New Brighton. 
I add the judicious remarks of the committee on canons, of 
the diocese of Wisconsin upon this subject. " The organiza- 
tion of a parish is strictly and solely an ecclesiastical pro- 
cedure, constituting the parish a component part of the Pro- 
testant Episcopal Church, and as such only entitling it to 
ecclesiastical rights and privileges ; that is, to the rights and 
privileges granted by the General and Diocesan Constitution 
and Canons. The ecclesiastical organization gives no civil or 
corporate powers to the parish. And further organization 
simply, though it admits a parish into union with the Church, 
does not admit it into union with the convention. 

The constitution of Wisconsin directs that the ors-aniza- 
tion as a parish should have lasted twelve months, then that 
the church be incorporated, and then it may, by a majority of 
votes, be admitted into union.*' 

Thus the important distinction between an ecclesiastical 
organization and a civil incorporation is clearly observed : and 
as on the one side it is plain that the ecclesiastical organiza- 
tion confers no corporate powers, so on the other it is manifest 
that the civil incorporation cannot control any canonical or 
diocesan relation. In truth, to hold that it can do so, is to 
revive the supremacy of the state over the Church. 

The extent of the authority of the Bishop in approving or 
disapproving an act of incorporation, under the provisions in 

1 Ante page ? 241. 



UNION WITH ANOTHER DIOCESE. 277 

New- York, Western New-York and Pennsylvania, is adverted 
to under the head of the canon relating to the officiating of 
ministers in the cures of others. See post, Chapter 5. 



TITLE VH. 

UNION OF A CONGREGATION WITH ONE IN ANOTHER DIOCESE. 

By the 43d canon of 1832 it is provided as follows :— 
"Whereas a question may arise whether a congregation with- 
in the diocese of any Bishop, or within any diocese in which 
there is not yet any Bishop settled, may unite themselves 
with the Church in any other diocese, it is hereby determined 
and declared, that all such unions shall be declared irregular 
and void ; and that every congregation of this Church shall 
be considered as belonging to the body of the Church of the 
diocese within the limits of which they dwell, or within 
which there is seated a church to which they belong. And no 
clergyman, having a parish or cure in more than one diocese, 
shall have a seat in the convention of any other diocese than 
that in which he resides. 

The first canon on this subject was the 8th of 1795. The 
only difference between that and the present canon was in 
the use of the word " state " as well as " diocese" in certain 
parts. 

^The 37th of 1808 was in precisely the same words as that 
of 1795. 

The first canon of 1817 was temporary in its character. 
It permitted the Episcopal congregations in Virginia and 
Pennsylvania, westward of the Alleghany mountains, to place 
themselves under the provisionary superintendence of any 
Bishop who might be consecrated for any state or states west- 
ward of such mountains. 



278 UNION WITH ANOTHER DIOCESE. 

In 1820 this canon was repealed. 



The principle and rule of the Church, by which a Bishop 
was restricted to his own diocese and had almost exclusive 
authority therein, was adopted with a view both to his effi- 
ciency and responsibility. It naturally follows from this prin- 
ciple, that the duty of all congregations within his limits is 
co-relative. The destruction of all unity would ensue, if par- 
ticular congregations in a diocese could select any neighbor- 
ing Bishop to minister to them, whose services they most favor- 
ed. The canon has gone further, and wisely provided against 
such an union, even where there is no Bishop. The present 
convenience might be considerable, but the future evils would 
be as great as in the other instance. 

Dr. Hawks states that the origin of the Canon of 1795 
was the union which took place of a church in Narragansett, 
Rhode Island, with the diocese of Massachusetts. A con- 
vention of clergy and delegates, of various churches in Rhode 
Island, had declared that Bishop Seabury should be the Bishop 
of the Church in that state. The Standing Committee of 
Massachusetts applied to Bishop Provoost, of New- York, 
who ordained a clergyman for the Narragansett church. A 
committee of the convention of Rhode Island reported that 
"this proceeding of the authority in Massachusetts was incon- 
sistent with every principle of Episcopal government, and had 
an evident tendency to induce disorder and promote schism." 
(Constitution and Canons, p. 130.) 



CHAPTER IV. 



TITLE I. 
ELECTION AND INSTITUTION OF MINISTERS. 

[Canon XXX., General Convention^ 1832.] * 

§ 1. It is hereby required, that, on the election of a minis- 
ter into any church or parish, the vestry shall deliver or cause 
to be delivered to the Bishop, or, where there is no Bishop, to 
the Standing Committee of the diocese, notice of the same, in 
the following form or to the following effect : 

" We, the churchwardens, [or, in case of an assistant mi- 
nister, We, the rector and churchwardens,] do certify to the 
Right Rev. [naming the Bishop] that [naming the person] has 
been duly chosen rector [or assistant minister, as the case 
may be,] of [naming the church or churches]." Which certi- 
ficate shall be signed with the names of those who certify. 

§ 2. And if the Bishop or the Standing Committee be 
satisfied that the person so chosen is a qualified minister of 
this Church, the Bishop, or the President of the Standing 
Committee shall transmit the said certificate to the secretary 
of the convention, who shall record it in a book to be kept by 
him for that purpose. 

§ 3. But if the Bishop or the Standing Committee be not 
satisfied as above, he or they shall, at the instance of the 
parties, proceed to inquire into the sufficiency of the person 
so chosen, according to such rules as may be made in the 



280 ELECTION AND INSTITUTION 

respective dioceses, and shall confirm or reject the appoint- 
ment, as the issue of that inquiry may be. 

§ 4. And if the minister be a Presbyter, the Bishop 
or president of the Standing Committee, may, at the in- 
stance of the vestry, proceed to have him instituted ac- 
cording to the office established by this Church, if that office 
be used in the diocese. But if he be a deacon, the act of 
institution shall not take place until after he shall have re- 
ceived priest's orders. This provision concerning the use of 
the office of institution is not to be considered as applying to 
any congregation destitute of a house of worship." 

The former canons on this subject were the 17th of 1789, 
the first of 1804, the 29th of 1808, and the second of 1814. 
It will only be important to point out the material variations. 
That of 1789 was the same as the three first sections of the 
present canon, the phrase induction being used for election in the 
first section. In that of 1804, a clause was added — "that if the 
minister elect be a presbyter, the Bishop or president of the 
Standing Committee shall proceed to have him inducted accord- 
ing to the office established by the Church. But if he be a deacon, 
the act of induction shall not take place till after he shall 
have received priest's orders, when it shall be the duty of the 
Bishop or president to have it performed." And there was 
also the following clause: " No minister who may hereafter 
be elected into any parish or Church shall be considered as a 
regularly admitted and settled parochial minister in any dio- 
cese or state, or shall as such have any vote in the choice of a 
Bishop, until he shall have been inducted according to the 
office prescribed by this Church." 

In 1808, the canon of 1804 was re-enacted with the fol- 
lowing changes : The word " induction" was altered to " in- 
stitution," and it was newly provided : " This canon shall not 
be obligatory on the Church in those dioceses or states, with 
whose usages, laws, or charters it interferes. Nor shall any 



OF MINISTERS. 281 

thing in this canon, or in any other canon, or in any service 
of the Church relative to the office of associated rector, apply 
to the Church in those states or dioceses where this office is 
not recognized by the constitution, laws, or canons thereof." 

" But it is to be understood that this Church designs not to 
express any approbation of any laws or usages which make 
the station of a minister dependent on any thing else than his 
soundness in the faith, or worthy conduct. On the contrary 
the Church trusts that every regulation in contrariety to this, 
will in due time be reconsidered; and that there will be re- 
moved all hindrances to such reasonable discipline as appears 
to have belonged to the Churches of the most acknowledged 
orthodoxy and respectability." 

In 1814, this 29th Canon of 1808, was repealed so far as 
it required the institution of an assistant minister, in order to 
make him a settled minister, and entitled to vote for a Bishop, 
and so far as it excluded a deacon from a seat and vote in any 
convention when he is not excluded by the constitution and 
canons of the Church in the diocese. And the provision as to 
the use of the office of institution was not to apply to any 
congregation destitute of a house of worship. 



The certificate or notice is the substitute of the Q , 

8 1 - 
presentation of the English law : " The word present a- The Certifi- 

tion is a known term of the law, and when spoken of a cate or no- 

benefice with cure imports the patron's presenting his TICE OF Elec " 

TION. 

clerk to the ordinary to be admitted and instituted," 1 
It is a right of a purely temporal nature, and if the patron die 
during the vacancy, the right devolves upon his personal re- 
presentative. 

The consequences of neglecting to transmit this certificate 
are pointed out in canons of several diocesan conventions. 
For example, in New- York, by the canon as amended and pass- 

1 Short vs. Carr. 2 Bro. P. Ca : 173. s Reynolds vs. the B hop of 
Lincoln, 8 Bingham's Rep. 550. 



282 ELECTION AND INSTITUTION 

ed in 1848, it is provided that the secretary shall record in a 
book as therein specified all certificates transmitted to him in 
accordance with the second section of canon 30 of the General 
Convention of 1832. In case of a contested right to a seat 
in the convention, the evidence of settlement shall consist in 
such record, or in the production of the certificate. So by- 
canon first of the diocese of Maryland, (1847,) the clergyman, 
to entitle himself to a seat in convention, must transmit to 
the Bishop a certificate of the wardens and vestry of his 
election. And by the second canon of the diocese of Western 
New- York, evidence of a settlement in the Church shall con- 
sist in proof of a compliance with the 1st, 2d and 3d sections 
of the 30th canon of 1832. 

g „ It will be noticed that the Bishop, if not satis- 

Tee inquiry fied of the sufficiency of the person, may, at the 
into the suf- instance of the parties proceed to inquire whether 
the chosen person is a qualified minister of the 
Church. That this does not mean that he is merely 
to ascertain whether the party has been ordained, appears plain 
from the subsequent section, as well as from other considera- 
tions. Under that section, the term qualified must receive a 
more comprehensive meaning. Its provisions are superfluous 
if nothing is to be passed upon but the fact of ordination. 1 

The Bishop or Standing Committee is then to be satisfied 
of the general fitness of the party elected ; and it may be 
suggested that the test should be the continuance and present 
possession of those qualities which originally entitled him to 
ordination. Thus a double-guard would be afforded, first 
against the intrusion of an unfit person into the Church at all; 
and next an intrusion into a parish brought into connection 
with the Church organization. 

" The general rule," says Bishop Stillingfleet, "is, and it 

1 See an Article in the True Catholic, vol. 5, p. 248. Also Dr. Hawks' 
Constitution and Canons, p. 269. 



ficiency of 
the Party. 



OF MINISTERS. 283 

was so resolved by the judges, that all such as are sufficient 
causes of deprivation of an incumbent are sufficient causes 
to refuse a presentee. But by the canon law more are allowed 
— Mult a impediunt promonendum quoe non dejiciuntP In 
the constitutions of Othobon, the Bishop is required to inquire 
particularly into the life and conversation of him that is 
presented. 1 

If, therefore, upon the information already possessed, or 
acquired by an informal inquiry, the Bishop is not satisfied, 
the parties may require an inquiry, and the appointment is 
to be confirmed or neglected according to the result. If the 
minister is found unqualified, the church cannot be admitted 
into union with him as its rector, nor can he be treated as 
canonically settled. 

The power which thus resides in the Bishop, and which 
this canon recognizes, is amply supported and illustrated by 
English authority. Indeed, there is no point more clearly 
settled, and as to which the interference of the civil tribunals 
is more restricted. 3 

But if the power is thus clearly established, the next 
question is, what is its extent, and what remedy is there for 
its abuse ? 



1 Stillingfleet's Eccl. cases cited 1 Burn's Eccl. Law, p. 157. 
Ed. 1842. 

2 As long ago as the time of Edward the Second, (articuli cleri,) it 
was answered by the king — " Of the ability of a parson presented unto 
a benefice of the Church, the examination belongeth to a spiritual 
judge. So it hath been used heretofore, and shall be hereafter." 

Lord Coke thus comments upon this passage : " De Idoneitate per- 
sona . This idoneitas consisteth in divers exceptions against parsons 
presented. 1st, Concerning the person, as if he be under age or a 
layman; 2d, concerning his conversation, as if he be criminous; 3d, 
concerning his inability to discharge his pastoral duty, as if unlearned, 
and not able to feed his flock with spiritual food. And the examination 
of the ability and sufficiency of the person belongeth to the Bishop, who 
is the ecclessiatical judge; and in this examination he is a judge, and 



284 ELECTION AND INSTITUTION 

In England, it is laid down by the highest authorities that 
the Ordinary is not accountable to any temporal court for the 
measures he takes, or the rules by which he proceeds in ex- 
amining and judging ; only he must examine in convenient 
time, and refuse in convenient time. Again, it is held that 
the clerks having been ordained, does not take away or di- 
minish the right which the statute (articuli cleri) doth give to 
the Bishop to examine and judge. 1 

The remedy in the rare cases in which the temporal courts 
can interfere is by the writ of mandamus. There was also a 
mode of redress in the ecclesiastical tribunals, by a writ 
of Duplex Qucersela. This was a monition to the Bishop, 
and at the instance of the clerk, that within a certain time 
he admit the party complaining, and also a citation to show 
cause why, by reason of his neglect, the right has not devolved 
upon the superior judge. 2 

not a minister. This act is a declaration of the common law and cus- 
tom of the realm." (2 Inst., 631.) 

"The inquiry," says Lynwood, "'is, whether the party be com- 
mendandus scientia et moribus." (Gibson's Codex, 806.) 

By canon 39 of the canons of 1603, "no Bishop shall institute any to 
a benefice who has been ordained by any other Bishop, except he first 
show unto him his letters of orders, and bring him a sufficient testi- 
mony of his former good life and behavior, if the Bishop require it ; 
and lastly, shall appear upon due examination to be worthy of the 
ministry." 

1 Gibson's Codex, 807. Shower's Pari. Cases, 88. Hele vs. the 
Bishop of Exeter, 4 Modern., 134. In the leading case of the King vs. 
the Archbishop of Canterbury and others, (15 East, 117,) the following 
points were determined : That the writ of mandamus will lie at the in- 
stance of the patron, so as to compel the Bishop to return the reasons of 
his refusal to admit a person presented ; that in his return he should 
specially state the grounds of his refusal — that as it is his duty to ex- 
amine, an examination in some proper mode should be instituted, and 
would be compelled • but that with these qualifications, his right to 
proceed and his decision could not be inquired into. 

2 1 Burns' Eccl. Law, Ed. Phillimorc, p. 159. 



OF MINISTERS. 95.5 

As our canon enjoins that if the Bishop is satisfied, he is 
to send the certificate to the secretary of the convention, this 
act of transmission is equivalent to an admission. If, there- 
fore, he neglect to transmit this certificate without good cause. 
it would be a violation of this part of the canon, and pre- 
sentable under the third canon of 1844 ; and whether he had 
good cause would then be investigated. So if he refused to 
direct an inquiry when asked for by a party, the like relief 
could be had. This at any rate would be one method in 
which the decision might be investigated. 

The canon directs that the Bishop or Standing § 4 - 
Committee is to inquire according to such rules as THE iIETH0I) 

, , . ,. OF INQUIRY. 

may be made in the respective dioceses. 

I do not find that any regulation has been made for the 
conduct of such an inquiry in any of the dioceses, whose canons 
I have had the opportunity of examining. 

It is however submitted, that until such rules are pre- 
scribed, the power of the Bishop virtute officii, is amply suf- 
ficient. The whole body of the canonical law is to this effect, 
and the civil courts in England have recognized the authority. 
They have recognized it as older than the declarative statute 
passed in the time of Edward the II. In fact when the canon 
confers the power, and enjoins the duty of judging, it would 
of itself (if that argument was necessary) involve the au- 
thority to direct a mode of investigation. 

In the case before cited from 15 East Rep. 117, the 
right of the Bishop in a somewhat similar case was much 
discussed. The 19th section of the act of uniformity was in 
question, that no one should be permitted to lecture or preach 
unless he be approved of and licensed by the Bishop. Lord 
Ellenborough said that the Bishop was to adopt the requisite 
means of informing his conscience in order to the correct 
exercise of this duty. He adverts to the statute articuli 
cleri, and notices that the phrase there used is ' ; examination" 
19 



286 ELECTION AND INSTITUTION 

which taken strictly may be understood to mean a personal 
examination. But no contemporary or subsequent practice 
had put this interpretation upon the act in question in the cause. 

" The word of the statute is ; approve,' and the Bishop 
must exercise that approbation according to his conscience, 
upon such means of information as he can obtain ; and every 
thing that can properly minister to his conscientious approba- 
tion or disapprobation, and fairly and reasonably induce his 
conclusion, though it might not be evidence in a court of law, 
may be fitly taken into his consideration." 

If the inquiry is as to qualifications in learning and theo- 
logy, the course upon admitting a candidate to orders would 
seem a proper one. If it refer to moral disqualifications, an 
investigation by a commission of inquiry, or other reasonable 
mode, is within the power of the Bishop. 

The history of the canonical regulations of the 
* ' Church upon this subject is before given. (Ante 

Institution 
OBl^OT^.PP- 120 - 126 ') 

Dr. Hawks has made this branch of the canon 
the subject of a long and able note. He has entered 
fully into the nature of these offices in England. I will 
add some authorities in order to explain my views. Burns 
says, that the whole matter of admission, institution and in- 
duction, is well explained in the following passage of Sir 
Simon Degge's Parson's Counsellor. " If the Ordinary, &c, 
upon the examination of the clerk, find him fit in all points, 
then he admits him in these words : Admitto te habilem, 8fc, 
and thereupon the Ordinary institutes him in these words : 
Instituo te rectorem ecclesice parochalis de C, et habere 
curam animarum, et accipe curam tuam et meam. When 
the Bishop hath instituted the clerk, the ordinary maketh 
a mandate under seal to the arch-deacon of the place, 
or to such other clergyman as he pleases, to induct the clerk; 
and it may be made by the dean and chapter, but not by the 



OF MINISTERS. 287 

patron : for though by the institution the Church is full against 
all persons except the King, yet he is not complete parson till 
induction ; for by the institution he is admitted ad qfficium, 
to pray and preach, yet he is not entitled ad beneficium until 
he be formally inducted ; which may be done by delivery of 
the ring of the church door, or latch of the church gate, or by 
delivery of a clod or turf and twig of the glebe ; but the most 
common and usual mode is, and therefore the safest, by delivery 
of the bell rope to the newly instituted clerk, and the tolling 
of the bell." 1 

In order fully to understand the subject, we must look 
into another part of the English law, viz. that relating to do- 
nations. Justice Blackstone (Commentaries, vol. 2, p. 23.) 
says — " An advowson donative is when the King, or any sub- 
ject by his license, doth found a church or chapel, and ordains 
that it shall be merely in the gift or disposal of the patron, 
and vested absolutely in the clerk without presentation, insti- 
tution, or induction. This is said to have been anciently the 
only way of conferring ecclesiastical benefices in England, the 
method of institution by the Bishop not being established more 
early than the time of Archbishop Becket in the reign of William 
IT. Others contend that the claim of the Bishop to institute is 
as old as the first planting of Christianity in this island, and in 
proof of it they allege a letter from the English nobility to 
the Pope in the reign of Henry III., recorded by Mathew 
Paris, which speaks of presenting to the Bishop as a thing 
immemorial. The truth seems to be that if a benefice was to 
be conferred on a mere layman, he was first presented to the 
Bishop to receive ordination, who was at liberty to examine 
and refuse him ; but when the clerk was already in orders, 
the living was usually vested in him by the sole donation of 
the patron till about the middle of the 12th century, when 
the Pope and his Bishops endeavored to introduce a kind of 

1 Eccl. Law } vol. 1, p. 1 67. 



288 ELECTION AND INSTITUTION 

feudal power over ecclesiastical benefices, and in consequence 
of that began to claim and exercise the right of institution 
universally as a species of spiritual investiture." * 

ATatson says :■ — " Donative was the ancient way of confer- 
ring benefices, and the institution to churches was not ordained 
by any temporal law, there being only a papal provision, and 
was not received in some places here in England ; and where 
it was not received, they still went on in their old way and 
method of conferring benefices, which afterwards were called 
Donatives."' 2 

But to this view of the matter may be opposed the high ? 
perhaps as high authority as is known in the English canon 
law — that of Bishop Stillingfleet. He says: 3 - — "The name of 
Patron in the sense of the feudal law is the same with Lord 
of the Fee, and so beneficiitm is a feudal term ; and, till the 
feudal law prevailed, the name of Patron is rarely used in 
this sense. And when it came to be used, the Patrons in 
France would have brought those who had their benefices to 
a kind of feudal service, and to have received investiture from 
them. This Mr. Selden drives at, as though the Patrons had 
the right of investiture belonging to them, because some such 
practice is often complained of in the French canons, and as 
often condemned, not merely by ecclesiastical canons, but by 
as good laws as any were then made. It cannot be denied 

1 So Fitzherbert Natura a Brcv. fol. 35. A donation is a benefice 
mere]y given and granted by the patron to a man, without either pre- 
sentation to the ordinary, or institution by the ordinary, or induction by 
his commandment. 

2 Clergyman's Laic. cap. 15. p. 170. cited in The Queen vs. Toley. Rep. 
Common Bench, 1846. vol. 1. p. 664. In this case the learning on the 
subject is extensively gone into, although the decision itself is of 
little general importance. The case depended on the construction of 
a particular deed. 

See the form of a donative in Cunningham's Law Dictionary, vol. 1. 
tit. Donative. 

3 Of the Duties, cVc. of the Parochial Clergy, 162, 



OF MINISTERS, 289 

that bad practices are the occasion of making good laws ; but 
doth it follow that those practices which were against law, 
were the law of that time ? Yet this is Mr. Seidell's way of 
arguing. He grants that there were laws made, but they 
were little obeyed. Must we, therefore, conclude these illegal 
practices to have been the standing law, and the laws them- 
selves to be illegal? There were two things aimed at by 
these Patrons. 1st. To keep the clergy in a sole dependence 
on themselves, without regard to the Bishop's authority. 2d. 
To make such bargains with them as they thought fit. Both 
these were thought necessary to be redressed by laws, since 
the canons were slighted by them." 

He proceeds to cite numerous laws and canons. Among 
them, the 123i and 57th Novell of Justinian, in the fifth cen- 
tury, which contain the very law of our Church, in substance, 
at this day. It was decreed, that if any man should erect an 
oratory, and desire to present a clerk thereunto by himself or 
his heirs, if they furnish a competence for his livelihood, and 
nominate to the Bishop such as are worthy, they may be or- 
dained. And the Bishop was to examine them and judge of 
their qualifications, and when these were sufficient, he was 
obliged to admit the clerk. 

Again, the Bishop, in his Treatise concerning Bonds of 
Resignation, has entered into a refutation of Mr. Selden's 
views of the matter, and, it appears to me, with great suc- 
cess. See particularly page 335. It is also certain that, in 
the opinions of modern English jurists, these donatives, where 
they now exist, are treated as having arisen from the Bishop's 
consent, or the grant of the Grown; and, as they are hostile 
to all just notions of Episcopal power, they are narrowly re- 
stricted ; so much so, that if the holder of a donative do once 
present to the Ordinary and suffer institution, its character of 
a donative is lost, and it becomes presentative. 1 

1 See the case of The Queen vs. Toley. before cited, and Bishop Gibson's 
aote at page 865. (2 Croke 63, Styles' Rep. 172.) 



290 ELECTION AND INSTITUTION 

In our colonial history, the general system which prevailed 
was a right of presentation by the vestry or the parish, and 
of induction by the governor. 

Thus, in Virginia, by the statute of 1642, the induction 
of a clergyman, into any parish which should make presenta- 
tion of him, was to be performed by the governor ; but it was 
at the option of the parish to make or withhold the presenta- 
tion. 1 Dr. Hawks states that this right was, he believes, conti- 
nued to be exercised up to the period of the Revolution. The 
form of induction was : — " A. B., His Majesty's Lieutenant 

and Governor- General, &c, To the Vestry of Parish, in 

: In virtue of the presentation which you have made 

to me of to be your minister, I do induct him into the 

real and corporal possession of the parish of — in , 

with all the rights, profits, and appurtenances thereof." 

In 1793 a canon was adopted, and re-enacted in 1799, 
entitled " Of the Induction of Ministers into Parishes," which 
prescribed that the right of presentation, or appointing minis- 
ters, should continue in the vestries, and no person should be 
received into any parish within the commonwealth, as a 
minister, until he should have entered into a contract in 
writing with the vestry or trustees, on behalf of the society 
within such parish, by which it shall be stipulated and de- 
clared, that he holds the appointment subject to removal 
agreeably to the rules and canons of the convention of the 
Protestant Episcopal Church of the state. (Hawks, vol. 1, 
App., 63, 76.) 

In Maryland, under the proprietary government, a different 
course was taken. The lord proprietor appointed a clergy- 
man to a living, the Bishop of London gave him a license, 
and the governor inducted him. In consequence of this, Lord 
Baltimore insisted that all the livings in Maryland were 
donatives. 2 

1 Hawks' Con., vol. 1, p. 53, 88. 

'Hawks' Contr., vol. 2, p. 190. Ibid., 239, 357. 



OF MINISTERS. 291 

In New- York, by the 6th section of the act of 1693, the 
ministers were to be called to officiate in their respective pre- 
cincts by the respective vestrymen and churchwardens. They 
were presented to, and inducted by the governor. 1 In Dr. 
Berrian's History of Trinity Church the forms are stated in 
full of the presentation of Rev. Mr. Barclay to the governor, 
the Act of Admission, the Letter of Institution, and the Man- 
date of Induction. These precedents completely display the 
law in New- York, and probably in most of the other Episco- 
pal colonies. The presentation requests the governor to ad- 
mit, institute, and induct the clerk, and the acts of admission, 
institution and induction, are all separate instruments. 

Dr. Hawks, in his able note upon the canon, has been led 
to the conclusion that the change in the title of the Church 
office from induction to institution, was not designed to change 
its object and operation ; that it still remains the method 
through which the right to the temporalities, and especially 
the control of the church edifice, is to be obtained ; and he 
presses the importance of the office being observed with a 
view to this point. 

I cannot think, however, that in the diocese of New- York, 
(and the reasoning will apply to other dioceses,) this conclusion 
is entirely accurate. I apprehend that the call itself, (which 
should always be in writing,) with the occupation of the 
church and performance of the duties in it, would entitle the 
clergyman to every right and authority which he would pos- 
sess by usage, or civil or canonical law, had the office of in- 
duction been used, or the word induct employed in the written 
call. What is the extent of the right of possession and other 
rights has been before partially noticed. ( Ante p. 265.) 

In a case in 1845, the Standing Committee of New- York 
adopted the following report and resolution: "Application 
having been made, &c, and it appearing that under the 

1 See Dr. Berrian's History of Trinity Church. 42. 



292 ELECTION AND INSTITUTION 

29th canon of the General Convention of 1808, and a resolu- 
tion of the convention of the diocese of New- York, passed 
October, 1820, letters of institution are not necessary in this 
diocese for the enjoyment of any privilege or the exercise of 
any right, by either a parish or its rector, and that the insti- 
tution office of the Church is not generally used herein ; and 
taking into consideration the peculiar situation of this com- 
mittee, therefore, resolved, that this committee decline issuing 
such letters in the present case." 

It was considered by the committee that the phrase in 
the canon, " if the same is used in the diocese," meant a gen- 
eral usage. The practice is by no means uncommon in the 
city of New- York, although not universal. It is rarely used 
in other parts of the diocese. After the convention of 1845, 
letters of institution were issued in this and other cases. 

It is to be noticed, that the term employed in the canon is 
may proceed. Y 7 et if the vestry apply for it, the word would 
probably be considered to mean shall. Again, the application 
of the vestry is a pre-requisite. 

In a previous part of this work, (Chapter!., pp. 120-126.) I 
have entered at length into the subject of this canon with a view 
to the question of the powers of the General Convention, and 
have before made some suggestions as to the effect of the insti- 
tution office upon the contracts between parishes and min- 
isters. I beg to refer to this, and to state here the results 
which I submit are deducible upon the whole matter. 

1st. It is within the power of the General Convention to 
establish any rules respecting the qualifications of members of 
that body : of course to say, that no clergyman not instituted 
according to the office shall be a member. 

2d. It is also within its power to declare that no clergy- 
man shall (after the passage of the canon) be a member of 
any diocesan convention, unless he has been instituted into 
some church according to the office. 



OF MINISTERS. 293 

3d. That the institution office is not essential to give to a 
minister any right to the emoluments attending the cure ; but 
such (in the absence of express stipulation) are as recoverable 
in the civil tribunals without as with it. 

4th. Neither is it necessary, in order to vest the incum- 
bent with that use of, and power over, the church building 
and precincts which is attendant upon his office, and requi- 
site for its proper performance ; that what such power is, may 
be ascertained from the law of the Church, judicial decisions, 
and the reason of the thing — that the delivery of the keys 
has no more legal effect upon this question than the call and 
an occupation pursuant to it. 

5th. That nothing in the office itself, to which the war- 
dens and vestry are parties, has any operation upon any pre- 
vious contract between the parties. The symbolical delivery 
of possession would be regulated as to extent, term, and 
nature of possession by the private contract, where one was 
made. 

6th. And as to that clause in the letter of institution 
which relates to the ultimate power of the ecclesiastical au- 
thority to judge of the propriety of a dissolution, even if omit- 
ted, it leaves the 33d canon of 1832 in full force, and imposes 
upon any particular church the task of showing a law, usage, 
or charter, interfering with that canon. 

"While I should greatly regret, with a view to the pro- 
tection of the clergy, that the positions thus presented should 
prove erroneous, there can be no doubt of the propriety and 
advisability of using the office throughout the Church. 



294 OF PAROCHIAL INSTRUCTION. 

TITLE II. 

OF PAROCHIAL INSTRUCTION. 

[Canon XXVIII. of 1822.] 
" The ministers of the Church who have charge of parishes 
or cures, shall not only be diligent in instructing the children 
in the catechism, but shall also, by stated catechetical lec- 
tures and instruction, be diligent in informing the youth and 
others in the doctrines, constitution, and liturgy of the 
Church." 



The 22d canon of 1808 was the first upon this subject, 
and was in precisely the same words. 

By the rubric to the office of catechism, the minister of 
every parish shall diligently upon Sundays and holy days, or 
on some other canonical occasions, openly in the church in- 
struct or examine so many of the children of his parish sent 
unto him as he shall think convenient, in some part of that 
catechism. 

By the English rubric, " the curate of every parish shall 
diligently, upon Sundays and holy days, after the second les- 
son at evening prayer, openly catechise the children." 

Archdeacon Sharp says that some of the strictest men 
in rubrical matters have justly observed, that no obligation 
can be urged from hence that ministers should catechise on 
all Sundays and holy days ; but if they do it as often as oc- 
casions of their parishes require, and do it on such days and 
at such times as are specified, they fulfil the intention and 
the letter of the rubric. 1 



1 Rubrics and Canons, p. 67. 



KEEPING A PARISH REGISTER. £95 

TITLE III. 

OF THE KEEPING A PARISH REGISTER. 

[Canon XXIX. Gen Conv. 1832.] 

" § 1. Every minister of the Church shall keep a register 
of baptisms, confirmations, communicants, marriages, and 
funerals, within his cure, agreeably to such rules as may be 
provided by the convention of the diocese where his cure lies ; 
and if none such be provided, then in such manner as in his 
discretion he shall think best suited to the uses of such a 
register. 

And the intention of the register of baptisms is hereby 
declared to be, as for other good uses, so especially 'for the 
proving of the right of church-membership of those who may 
have been admitted into this Church by the holy ordinance of 
Baptism. 

§ 2. And further, every minister of this Church shall 
make out and continue, as far as practicable, a list of all 
families and adult persons within his cure, to remain for the 
use of his successor, to be continued by him, and by every 
future minister in the same parish." 



The first canon on this subject was the fifteenth of 1789. 
It differed from the existing canon in directing the register to 
be kept agreeably to such rules as the ecclesiastical authority 
should provide, instead of the convention of the diocese as at 
present. 

There was also the following clause in that canon which 
is not in the present: "And no minister shall place on the 
said list the names of any persons, except those who on due 
inquiry he shall find to have been baptized in the Church, or 
who, having been otherwise baptized, shall have been received 
into this Church, either by the holy rite of Confirmation, or 
by receiving the holy Communion, or by some other joint act 



296 OF THE KEEPING 

of the parties and of a minister of this Church, whereby such 
persons shall have attached themselves to the same." 

The canon was adopted in the same form in 1808, and so 
remained until that of 1832, now in force. 

Certain rules have been adopted in various dioceses under 
this law. 

In New- York, the 7th % canon provides as follows : " "Where- 
as, by the 29th canon of the General Convention of 1832, 
it is made the duty of each clergyman of this Church to keep 
a register of baptisms, confirmations, communicants, mar- 
riages and funerals within his cure, agreeably to such rules 
as may be provided by the convention of the diocese where 
his cure lies, it is hereby ordered that 

" § 1. The record shall specify the name and time of the 
birth of the child baptized, with the name of the parents and 
sponsors ; the names of the adult baptized ; the names of the 
parties married ; the names of the persons buried, and also 
the time when each rite was performed. These registers 
shall be kept by the minister in a book to be provided for 
that purpose belonging to the vestry of each church, which 
book shall be the parish register, and shall be preserved by the 
vestry as a part of the records of the church. 

" The list of communicants shall embrace all within his 
cure, as nearly as can be ascertained, and he shall also keep 
a list of the families and adult persons in his cure, as far as 
practicable, and also an accurate list ol persons confirmed 
from time to time by the Bishop. 

"4 2. And whereas, by the 8th canon of the Greneral Con- 
vention of 1841, every minister of the Church shall present, 
or cause to be delivered, on or before the first day of every 
annual convention, to the Bishop of the diocese, or where 
there is no Bishop, to the president of the convention, a state- 
ment of the number of baptisms, confirmations and funerals, 
and of the number of communicants in his parish or church, 



A PARISH REGISTER. 297 

and of all other matters that may throw light on the same : 
it is further ordered, that in reporting the number of commu- 
nicants, he shall distinguish the additions, removals and 
deaths since his last report. 

" In every case where a parish is destitute of a minister, 
the register contemplated by this canon shall be kept by some 
person appointed by the vestry for that purpose ; and the an- 
nual parochial reports shall be presented or forwarded to the 
Bishop by the wardens of the parish." 

The canonical regulations are nearly the same in Dela- 
ware, Ohio, and Western New- York. 



Parish registers" began to be kept in the 30th year of 
Henry VIII., being established by Cromwell when Yicar 
General. The duty was enforced by injunctions of Edward 
Sixth and Queen Elizabeth, and also by the 70th canon of 
1603. Various statutes were made concerning them at dif- 
ferent times, but they were all condensed in a full act for a 
national registration, that of the 6th and 7th AVilliam IV., 
c. 86. 

Parish registers are, to a certain extent, admitted in evi- 
dence, and great care should be used in making the entries. 1 

By the statute of the state of New-York, (2 E. * 139.) it 
is provided, § 7, that the minister or magistrate by whom a 
marriage is solemnized, pursuant to the provisions of the 
statute ^hall furnish, on request, to either party a certificate 
thereof, specifying 

1. The names and places of residence of the parties mar- 
ried, and that they were known to such minister or magis- 
trate, or were satisfactorily proven, by the oath of a person 
known to him, to be the persons described in such certificate, 

1 Jackson vs King, 5 Cowex ; 236. Sworn copies of entries of bap- 
tisms and marriages in the records of the Reformed Dutch Church in 
the city of New-York were admitted to prove those facts. See 5 Pe- 
ters, 470; 6 BinneTj 416. 



298 OF THE KEEPING 

and that he had ascertained that they were of sufficient age 
to contract matrimony. 

2. The name and place of residence of the attesting wit- 
ness or witnesses : and 

3. The time and place of such marriage. 

The certificate shall also state, that after due inquiry 
made, there appeared no lawful impediment to such marriage ; 
and it shall be signed by the person making it. 

Every such certificate signed by a magistrate, if present- 
ed to the clerk of the city or town where the marriage was 
solemnized, or to the clerk of the city or town where either of 
the parties reside, within six months after such marriage, shall 
be filed by such clerk, and shall be entered in a book to be 
provided by him, in the alphabetical order of the names of 
both the parties, and in the order of time in which such cer- 
tificate shall be filed. 

If the certificate is signed by a minister, it may be filed 
and recorded in like manner, provided there be endorsed there- 
on, or annexed thereto, a certificate of any magistrate re- 
siding in the same county with such clerk, setting forth that 
the minister by whom such certificate is signed is personally 
known to such magistrate, and has acknowledged the execu- 
tion of the certificate in his presence ; or that the execution 
of such certificate by a minister or priest of some religious 
denomination was proved to such magistrate by the oath of a 
person known to him, and who saw the certificate executed. 
Certain provisions are then made in the statute as to the 
form of the entry by the clerk, and it is then provided, that 
every such original certificate, the original entry thereof made 
as directed, and a copy of such certificate, or of such entry 
duly certified, shall be received in all courts and places as 
presumptive evidence of the fact of such marriage. 

This statute, as reported by the revisers, required all mar- 
riages to be solemnized in the manner pointed out by the fore- 



A PARISH REGISTER. 299 

going provisions, with a view to prevent abuses, to furnish the 
means of proving marriages, and to authenticate and preserve 
such proof. The joint committee and the legislature concur- 
red in the utility of providing means for authenticating the 
proof ; and in reference to cases where the parties required 
their marriages registered and authenticated, they concurred 
in the expediency of prescribing the solemnities to be observed ; 
but they did not concur in the utility of providing that 
all marriages should be solemnized in the manner prescribed. 
Several sections were therefore stricken out, and others were 
amended. A further clause was added, " that the provisions 
of the article should not require the parties to any marriage, 
or any minister or magistrate to solemnize the same in the 
manner therein prescribed ; but all lawful marriages contract- 
ed in the manner before in use in the state, should be as valid 
as if the article had not been passed." 



TITLE IV. 
DUTY OF MINISTERS ON EPISCOPAL VISITATIONS. 

[Canon XXV L, General Convention 1832.] 

§ 1. It shall be the duty of ministers to prepare young 
persons and others for the holy ordinance of Confirmation. 
And on notice being received from the Bishop of his intention 
to visit any church, (which notice shall be at least one month 
before the intended visitation,) the minister shall give imme- 
diate notice to his parishioners individually, as opportunity 
may offer ; and also to the congregation on the first occasion 
of public worship after the receipt of said notice. And he shall 
be ready to present for confirmation such persons as he shall 
think properly qualified, and shall deliver to the Bishop a list 
of the names of those confirmed. 

k 2. And at every visitation, it shall be the duty of the 



300 DUTY OF MINISTERS 

minister, and of the churchwardens or vestry, to give infor- 
mation to the Bishop of the state of the congregation, under 
such heads as shall have been committed to them in the no- 
tice given as aforesaid. 

§ 3. And further, the ministers and churchwardens of such 
congregations as cannot be conveniently visited in any year, 
shall bring or send to the bishop, at the stated meeting of the 
convention of the diocese, information of the state of the con- 
gregation, under such heads as shall have been committed to 
them, at least one month before the meeting of the convention. 



The first canon was the 11th of 1789. The only other, 
prior to 1832, was the 21st of 1808. The canon of 1789 dif- 
fered from the present in these particulars merely : Instead of 
the words "young persons," the word "children" was used 
in the first line of the first section. 

The clause directing the minister to give notice to his 
parishioners individually, and to the congregation on the first 
occasion of public worship, was not comprised in it, nor the 
word " vestry " after churchwardens in the second section. 

In 1808, the only variation made was the insertion of the 
word "vestry " in the second section. 

It is necessary, in order to understand some questions 
upon this subject, to advert to the 25th canon of 1832. 

That canon regulates Episcopal visitations. It provides, 
$ 1. That every Bishop in the Church shall visit the churches 
within his diocese, for the purpose of examining the state of 
his Cliurch, inspecting the behavior of the clergy, and ad- 
ministering the apostolic rite of Confirmation. And it is 
deemed proper that such visitations be made once in three 
years at least, by every Bishop, to every church within his 
diocese, which shall make provision for defraying the neces- 
sary expenses of the Bishop at such visitation. And it is 



ON EPISCOPAL VISITATIONS. 301 

hereby declared to be the duty of the minister and vestry of 
every church or congregation to make such provision accord- 
ingly. 

§ 2. But it is understood, that to enable the Bishop to 
make the aforesaid visitation, it shall be the duty of the 
clergy, in such reasonable rotation as may be devised, to offi- 
ciate for him in any parochial duties which belong to him. 

§ 3. It shall be the duty of the Bishop to keep a register 
of his proceedings at every visitation of his diocese. 



It deserves notice, that in the first section of this canon 
the phrase is, " of examining the state of his (the Bishop's) 
Church." This was the phrase in the preceding canons, viz., 
the 3d of 1789, the 1st of 1795, and the 20th of 1808. 



The principle of diocesan authority and supervision 
which we find in the early Church, will lead us to an 
understanding of the object of a visitation, and the power 
of a Bishop when making it. When the diocese was small, 
the duties were performed by himself, or with the aid of cer- 
tain of his clergy : afterwards, delegates of his clergy from 
the body assembled around him officiated in his stead in de- 
signated places. And lastly, as the necessities of the Church 
required, and the bounty of patrons gave the opportunity, 
some of the clergy w T ere located in certain denned limits, with 
the care of souls therein committed to them ; and the superior 
power of the Bishop over his Church came to be exercised 
occasionally and by visitation. 1 

1 Bishop Stillingfleet says, in his Discourse at the Visitation of 
Worcester Cathedral : " The right of a visitor is a legal right, and well 
known, and implies diligence and care in inspecting, and authority to 
reform abuses and to punish offenders, without which it would be an 
insignificant title." 

" In the old churches, which were not altered by Henry VIII., the 
Bishop acts by virtue of his original jurisdiction, and visits as Bishop of 
20 



3021 DUTY OF MINISTERS 

Accordingly, we read, these visitations were regulated by 
canons at a very early period. A canon of the 3d Council of 
Tarracona speaks of the duty of an annual visitation as one 
established by old custom. 1 

The leading objects of the visitation, as stated by the ca- 
nonists, were not merely to see that the fabric and ornaments 



the diocese, who is bound to look after the clergy not only in parochial 
churches, but in communities, especially that of the cathedral, where the 
Bishops' authority was first fixed, and from whence persons were sent 
to preach in different parts of the diocese, before the endowment of 
parochial churches, which was a work of time, and not so early as is 
commonly thought. But by degrees, in these cathedral churches, the 
Bishops thought fit to limit the exercise of their own jurisdiction to 
certain times, but still reserving the right of appeal and the power of 
visiting at such limited time in ordinary course; and within that time 
all that interior jurisdiction, which was in the Dean Chapter, and was 
originally derived from the Bishop, was suspended, and returned again 
when the visitation ended. 7 ' 

So in his Treatise on the Antiquities and Legality of an Archdeacon's 
Visitation, he says : "After the Christian Church became so much en- 
larged that the dioceses of Bishops were looked on as too great for 
the particular care of one person, by a general consent of the Chris- 
tian Church some presbyters were particularly appointed to have an 
inspection over the remoter parts of the diocese, but in subordination 
to the Bishop." 

In the Preface to the Duties and Rights of the Parochial Clergy, he 
says: " The Bishops were resident in their own sees, and had their 
clergy then about them, whom they sentabioad, as they »aw cause, to 
those places where they had the fairest hopes of success ; and accord- 
ing thereto, they either continued or removed them, having yet no 
fixed cures or titles. All the first titles were no other than being en- 
tered on the Bishop T s register as of his clergy, from which relation none 
could discharge himself without the Bishop's consent." 

See also the Discourse on the Bonds of Resignation, (Cases, 309.) 
In the 9th chapter of Kemble's Saxons in England, (vol. 2, p. 430.) 
we find it stated : " In the theory of the ancient Church, the whole 
district subject to the rule of the Bishop formed one integral mass; the 
parochial clergy, even in spirituals, were but the Bishop's ministers or 
vicars, and in temporals they were accountable to him for every gain 
which accrued to the Church." 
1 Van Espen. Tome I., Tit. 17. 



OX EPISCOPAL VISITATIONS. 303 

of the churches were preserved and increased, but chiefly 
that the ancient Christian discipline was restored, both among 
clergy and people — to inquire into the conduct of both, and 
to correct those who are depraved. 1 

Yan Espen, in speaking of exemptions, cites two cases in 
the Grallican Church, in which it had been held, that in one 
instance, an Archbishop, and in another a Bishop, had been 
in the habit of visiting a particular church of the holy order 
of St. Anthony, ; ' the baptismal fonts, and chapel, or parochial 
church, with everything annexed to the same, and of perform- 
ing therein everything which related to the cure of souls, in 
the same manner as in other beneficed cures of his diocese." 2 

By some regulations, the Bishop was not to act judicially 
at these periods, or take cognizance of such notorious crimes 
as were the subjects of judicial process. His office then, was 
rather to correct in a summary mode, and without form or 
publicity, whatever he found wrong. 3 So in Comyn's Digest, 
Tit. Visitor, C, we read, that the Bishop is to proceed sum- 
marie, simpliciter, et de piano, sine strepitu aut figura judicii. 

And the ablest among the canonists hold that no exemp- 
tion, no custom, no incorporation, can possibly exempt any 
places, regular or secular, from the visitation of Bishops, with- 
out the entire destruction of Episcopal authority and hier- 
archical subordination. 4 

Ayliffe observes, from the sixth book of the Decretals, that 
among the orders to be observed by Archbishops, Bishops, and 



1 Van Espen, citing various authorities. Tome I., Tit. 17, cap. 1-11. 

' 3 " Fontes baptismales, et capellam, sue parochial em. cum omnibus 
suis anneris, atque in his exercendi. omnia quae curam animarum spec- 
tant, sicut in aliis beneficiis curatis suae Diocesis. Item judicatur pro 
episcopo Ambiamensi. Ibid., cap. 3, 9. 

3 Ibid., cap. 4, 4. 
*J Ibid., cap. 3. 9. See also the 8th canon of the Council of Chal- 
cedon. 



304 DUTY OF MINISTERS 

others in their visitations, the first is, that they ought to 
preach the word of (rod by giving the congregation a sermon. 1 

In the English Church, during a visitation, the power 
and jurisdiction of all inferior persons is superseded and in- 
hibited. A custom arose, from the inconvenience of this rule? 
of granting relaxations, often of an unlimited nature, and 
sometimes, " of leave to confer orders, confirm, grant fiats 
for institution, institute, or correct." 2 In these latter instances 
the visitation was of course by the Archbishop. 

With respect to the visitations by Archdeacons, as to 
which so much is found in the English books, I content my- 
self with referring to the Treatise of Bishop Stillingfleet, of 
the Antiquity and Legality of Archdeacons' Visitations, and 
to Gibson's Codex, Tit. Visitation. It will be sufficient to 
observe, that the chorepiscopi, or rural Bishops, had inspection 
over the remotest parts of the diocese, in subordination to the 
Bishop. The Council of Laodicea (anno 300) forbade this 
practice, and directed that no Bishop should be placed in 
country villages, but only visiting presbyters. It seems, how- 
ever, that the title continued, and that great disputes arose as 
to the extent of their power, they claiming, in some cases, 
the right to confer orders. At the Council of Aken in 803, 
orders conferred by them were declared null, and their office 
was abolished. This was also done by a capitular of Charles 
the Great, and canons were then made for the visitation by 
the Bishops personally of their whole diocese once a year. 

The Bishops, however, probably from the necessity of the 
case, substituted certain of the clergy in place of the chor- 
episcopi, to discharge similar duties ; and as the archdeacon 
was near the Bishop, and mainly trusted by him, a delegation 
of authority came to be committed to him. " He was, at 
first," says Bishop Gibson, " employed generally throughout 

> Parer.,515. 
2 Gibson, p. 958. 



OH" EPISCOPAL VISITATIONS. 305 

the diocese at the pleasure of the Bishop, and his power in the 
ancient state was chiefly a power of inquiry and inspection.' 1 ' 1 

An important case was decided in the Queen's Bench in 
1841, involving some points which it may be useful to notice 
An abstract will be found in the note. 2 It is principally val- 
uable in settling the right of a Bishop to make inquiries by a 
delegation of power, a point which has been several times dis- 
cussed in relation to various canons. 

A case of great interest occurred in Maryland in the year 
1847,— the case of the Rev. Mr. Trapneli. 

1 Codex. 100, &c. 

2 The Dean of York's case, apud 1 Burns by Phillimore, 15, &c. 
The Archbishop of York held a visitation of the Dean and chapter 

of that cathedral church, and appointed Dr. Phillimore his commissary 
to carry it into effect. The Dean being charged with simony in the 
sale of livings, denied the jurisdiction of the commissary to try him. 
He was proceeded against, however, and sentence of deprivation pro- 
nounced. A prohibition was applied for. The question turned mainly 
on the statute 30th Victoria, and the effect of a proviso in that statute. 
The statute had enacted " that no criminal suit or proceeding against a 
clerk in holy orders, for any offence against the laws ecclesiastical, 
shall be instituted in any ecclesiastical court, otherwise than according 
to the provisions of that act." 

The proviso was, " that nothing in the act contained chould be con- 
strued to affect any authority over the clergy of their respective pro- 
vinces or dioceses, which the Archbishop or Bishops may now, accord- 
ing to law, exercise personally, and without process in court." 

The court first held, that as soon as the visitor proceeded to exam- 
ine the proof of an ecclesiastical offence charged, with a view to pun- 
ishment by deprivation or otherwise, a criminal proceeding was un- 
doubtedly instituted. 

Next, that as by the statute, the proceeding to be within the act, 
must be one in an ecclesiastical court, they were brought directly to 
the question, whether a Bishop as visitor, had a power to deprive with- 
out process of court. This would solve the point whether the proviso 
was applicable or not. Lord Denman then entered upon the authori- 
ties, and came to the conclusion, that no such power of deprivation 
had ever been exercised without a judicial process. He concludes: 
" Up to the point of the sentence, the Archbishop unquestionably had 
power to inquire with a view to ulterior proceedings, and it seems that 
the Lord Chancellor discharged an application for a prohibition that had 
been made to him before sentence, on that very ground." 



306 DUTY OF MINISTERS 

The principal charge against him was for insubordination, 
in refusing to permit the Bishop to administer the Holy Com- 
munion at his annual visitation ; and the charge was framed 
under that part of the canon of Maryland enumerating among 
canonical offences, " conduct incompatible with the character 
of a minister of Christ." 

One objection to the presentment was, that the offence 
was not one of those enumerated in the 37th canon of the 
General Convention, that no presentment could be made ex- 
cept under that canon, and the canon of Maryland was void 
if it constituted a new triable offence. 

This was overruled, and a part of the argument of the 
Church advocate was precisely that heretofore advanced in 
this work : That the canon did not contain the full penal code 
of the Church — that its title was " Of Offences for which a 
Clergyman may be Tried," not of "the" offences. That 
no exclusive legislation was designed. It was only meant to 
specify some offences for which a clergyman must be tried, 
leaving the code to be filled up as the separate conventions 
might think proper. 

The other leading points of the powerful argument of the 
Church advocate were— 

1. That the Bishop is a minister of the word and sacra- 
ments ; in other words, a priest. 

2. That he has jurisdiction throughout his diocese. 

3. That visitation is an exercise of his jurisdiction. 
Having established these positions in an argument of 

marked ability and learning, he draws the conclusion that 
the Bishops, being originally clearly endowed with the power 
of preaching and ministering in every part of their dioceses, 
had not parted with that right, although they had circum- 
scribed its exercise to the periods of visitation. And he then 
proceeds to a critical examination of those portions of the ru- 



ON" EPISCOPAL VISITATIONS. 307 

brics and canons which were relied upon as settling the non- 
existence of the right 

The determination of the court was, " that even in the 
absence of canonical legislation on the subject; the Bishop, in 
order to the discharge of his Episcopal functions, possesses 
the right to administer the holy Communion on occasions of 
canonical visitations." 

The question was again revived in Maryland in the year 
1850, in the case of Christ Church, Baltimore, and the posi- 
tion of the court in the case of the Rev. Mr. Trapnell, above 
stated, was supported by the convention. I annex in a note 
the reports of the committee to which the matter was referred. 1 

1 " The committee to which was referred so much of the Bishop's 
address as related to his recent notice of a visitation to Christ Church, 
Baltimore, and the revocation of that notice, and also the correspond- 
ence between him and the rector of that church, and the letter of its 
vestry to certain other Bishops, beg leave respectfully to report. 

" That they have endeavored to consider these subjects with the care 
and dispassionateness which their importance and their delicacy de- 
mand. The committee do not regard it as a matter submitted to their 
consideration whether the terms of this correspondence are exceptiona- 
ble in respect to the language or tone in which it is expressed. The 
object of it was obviously to make a question as to the relative right 
of the diocesan and the rector on an occasion of a regular canonical 
notice of an Episcopal visitation • and the question is distinctly raised, 
and the harmony of the diocese will, it is believed, be best promoted, 
by an authoritative judgment o'f the convention on the questions in- 
volved. 

CJ Your committee is of opinion that the true solution of these ques- 
tions does not rest on any mere verbal criticism of canons and rubrics, 
although entirely consistent with the results of such criticism, when 
rightly employed. Their true solution rests on principles, much deep- 
er and more vital principles, which lie at the foundation of the Church 
itself. In reasoning with Churchmen it is lawful, it is indeed only re- 
spectful to them, to take as axioms those truths which the Church 
clearly maintains, however they may be doubted or denied by those 
out of her pale. Among such truths are the following: 1st, that Bish- 
ops are successors to the Apostles in the ordinary powers of their of- 
fice, though not in the extraordinary qualifications and endowments of 
those first ministers of Christ. 2ndly, that as such the apostolic 



308 DUTY OF MINISTERS 

A great point in the argument of the Rev. Mr. Trapnell 
and his counsel, reiterated in the report of the minority in 

commission embraces them, and that they too are enjoined and au- 
thorized to go into the world and teach or disciple all nations, baptising 
them in the name of the Father and of the Son and of the Holy 
Ghost. 3dly, that consequently Bishops as such have the right to 
preach and administer the Sacraments, as well as rule in the Church. 
4thly, that these Episcopal rights are to be exercised in their dioceses, 
these being their appointed fields of labor. 5thly, that consequently 
every Bishop has a right to preach and administer the Sacraments in 
his diocese, independently of any parochial cure; and in every part of 
his diocese, for if there be any part of his diocese in which he cannot 
exercise episcopal rights, then in that part he is not Bishop. 

" On these principles the committee found their clear conviction of the 
general right of a Bishop to preach, to administer the Sacraments, and 
to rule, in his whole diocese, and in every part of it. It would seem 
a necessary conclusion that if there be a church in a diocese, in which 
the Bishop can never preach or administer the Sacrament, and the 
like, without being in such instance authorised by another, that he 
really has not Episcopal power in that Church. It may be asked. Is 
there no limitation to these principles? Can a Bishop at any time, in 
any part of his diocese, perform any ministerial act he pleases? The 
committee will not keep back their belief that in the beginning it was 
even so — that in the earliest ages of the Church, presbyters did not 
preach when Bishops were present, and that, as we are taught by the 
learned Bingham, it was a notable event, when St. Augustine, while 
still a presbyter, was permitted to preach in the presence of the Bishop. 
The institution of the parochial system has, however, produced a 
mighty revolution in the relations of Bishops and presbyters. Presby- 
ters are now made responsible for the spiritual state of the souls in 
their parishes, and their power must bear some relation to their re- 
sponsibility. The committee consequently conceive that the mere 
presence of a Bishop does not, by the present established system of the 
Church, take away the right and duty of a presbyter to teach in his 
own person, and administer the Sacraments by his own hands to the 
people of his charge. And yet the Bishop, on the principles first laid 
down, must also have the right to teach and administer the Sacraments 
in every part of his diocese. These apparently conflicting rights are, 
as the committee believe, perfectly reconciled in the admirable system 
of the Church by confining the Bishop in the exercise of his, to those 
comparatively rare occasions on which he goes officially, in his very 
Episcopal character, in visitation of a parish. If he have it not then, 
he never has it, and one of two conclusions must follow ; either that 



ON EPISCOPAL VISITATIONS. 309 

the case of Christ Church, depended upon the principle, 
that a Bishop was but a priest with some superadded powers ; 

the Bishop, as such, is not authorised to preach and administer the 
Sacraments, or that being thus authorised by his very office, this au- 
thority is afterwards taken from him by the rubrics and canons which 
regulate that office. Are we to believe that the Church has so stulti- 
fied herself? and that having in the consecration office given these 
powers in obedience to Scripture, the moment the consecration is com- 
plete she takes them away by her rubrics and canons which the Bishop 
is bound to observe ? Such a conclusion any one who loves or honors 
the Church will be slow to receive. On what ground are we asked to 
receive it? Mainly on this, that in the ordinary Communion Office, 
the minister is usually described as " priest," and that when the 
Bishop is specially spoken of, it is in contradistinction from li the 
priest" in giving the absolution. An obvious reply to this, is, that 
every Bishop is necessarily a priest, and that the word here means 
only an officer distinct from layman or deacon, and that the effect of 
the rubric concerning absolution in the Communion Office, as compared 
with the other rubrics of that office, is, that when the Bishop is present, 
he must pronounce the Absolution, while he may or may not perform 
the other parts of the office. 

"But that the term 'priest' in the rubrics of the Communion Office 
is used inclusively and not exclusively of Bishops, appears to the com- 
mittee indisputably certain from this consideration, that in the Liturgy 
of the Church of England, in the Ordination Service, the Bishop is re- 
quired to administer Communion, and that the only form provided in 
that Church is the form containing the same rubrics with our ordinary 
form. Consequently those rubrics in the English Liturgy must be so 
interpreted that the term " priest " includes Bishops as well as presby- 
ters. Bat as we have adopted the rubrics with a fixed interpretation, 
we have necessarily adopted the interpretation. If it be said in reply 
to this that our Church has a special Communion Service to be used by 
the Bishop on occasion of ordination, this must be remembered in con- 
nection with that service, that there is no rubric in it, and certainly 
there is no canon, confining it to any special occasion j but that it is 
just the office which a Bishop might naturally and properly use when- 
ever he administered the Communion, and that in this none of the 
rubrics which have perplexed some minds are to be found. 

While on these grounds the committee are of opinion that on occasions 
of visitation a Bishop generally in our Church has, and ought to have, the 
right to preach and administer the Sacraments, and perform other min- 
isterial acts in any parish of his diocese, they consider that the ques- 
tion as to the law of this particular diocese was settled some three years 



310 DUTY OF MINISTERS 

that such additional powers were conferred by the acts of the 
Church in councils or synods ; that we are to ascertain what 

ago, by the decision of the only ecclesiastical tribunal before which it 
would judicially come. Of course this decision might be set aside by 
a declaratory canon, and perhaps otherwise ; but until superseded the 
committee consider it as having a binding force on all who belong to 
this diocese. They consequently regard the Bishop as fully authorised 
to issue his notice of visitation to Christ Church, Baltimore, in the 
form used by him, and when he had received notice in reply from the 
rector, that he could not consent to his exercising these rights, the 
committee consider that the Bishop acted wisely, gently and properly, 
in revoking his notice; the alternative being his sacrifice of what he 
believed, and what the judicial authority of his diocese had decided to 
be his right, or by attempting to enforce it, involving one of his pres- 
byters in an ecclesiastical offence, and exposing him to a presentment. 
In all times, but especially in troublous times like these, the committee 
approve of that course, which, without sacrificing principle, will most 
probably avoid strife and scandal. 

11 In conclusion, the committee recommend the adoption by the con- 
vention of the following resolutions, viz : " 

The first of these resolutions, the only one important here, was as 
follows : 

" Resolved, 'that a Bishop in order to the exercise of his Episcopal 
functions, possesses the right, on occasion of canonical visitations, to 
control the services, and to take to himself such portions of them as 
he may think proper." This was adopted by a vote of 64 to 11 of the 
clergy, and 42 to 20 of the laity. 

The report of the minority of the committee was as follows : 
'•'The undersigned, being the minority of the committee to whom 
was referred so much of the Bishop's Address as related to his revoking 
of an appointment for the visitation of Christ Church, Baltimore, and 
the correspondence connected therewith; being unable to coincide 
with the sentiments of the majority of said committee, do very respect- 
fully present the following Report : 

" The issue created in the correspondence is clearly this — with 
what rights is a Bishop clothed at a visitation ? It is obvious that 
said visitation refers to the exercise of certain functions ; hence the 
office is distinct from other orders in the ministry; and just as ob- 
vious is it that all such exercise of functions is under restrictions from 
the regulations and laws of the Church from the days of the Apostles. 
In the language of the learned expounder of the constitution and 
canons of our Church— the Rev. Dr. Hawks— the usage of regulating 
the exercise of a Bishop' s functions by certain fixed rules, is as ancient as 
the office of a Bishop. There is as much of venerable antiquity in the 



ON EPISCOPAL VISITATIONS. 311 

has been conferred in each church ; and hence that the sole 
guide in the inquiry was, whether the right to preach, and 

custom of jnaking laws for Bishops, as there is in making Bishops 
themselves. It may be safely affirmed, that since the days of the 
Apostles, they never were left with no guide but their own discretion. 
A law cannot indeed be made wholly to prevent a Bishop from doing a 
Bishop's appropriate duty; but the history of the Church is fall of le- 
gislation, to regulate the mode in which he shall perform that duty. 
The right of ordination belongs to a Bishop — it was his from the be- 
ginning — he would very properly treat with utter contempt any canon 
which professed to take it from him. and give it to deacons for in- 
stance. Bat who, from this fact, supposes that the rights and preroga- 
tives of our Episcopate are violated, because our portion of the Church 
of Christ forbids a Bishop to ordain until certain pre-reqaisites are 
complied with ? But we are unwilling to speak further without ad- 
ducing the clear testimony of the venerated Bishop White. On the 
promise of obedience in the ordination ol* deacons, he thus writes : 
' When the passage speaks of godly admonition, it must have refer- 
ence to some standard, by which they should be directed. This stand- 
ard must be the various established institutions of the Church, and not 
the private opinions of the Bishop. It is well known that the Church 
from which this is descended, like the State to which it is allied, is a 
government of law. and not of will, and we cannot suppose that ours, 
professing to follow in the leading features of its system, should have 
designed to reject this so congenial to the still more moderate degree 
of authority, which it will be possible in present circumstances to ex- 
ert. If it should be asked — who shall be the arbiter on any question 
which may be raised as to the fitness of the interposition of the Bishop ? 
The answer is — the question being understood of admonition out of the 
line of strict ecclesiastical proceeding, which ought to be governed of 
course by a determinate standard ) that each party may judge for him- 
self, as he shall answer for this, and every other part of his conduct 
to Almighty God. J 

" Here it is proper to ask — has this Church spoken on the subject 
of Episcopal Visitation? Undoubtedly she has ! First, in the way of 
limiting all such visitations to a particular diocese, and restraining 
them from all others, except as in the cases, and under the restraints 
specified. Second, in the 25th canon of 1832. Here we have the pur- 
pose of the visitation set forth, viz : To inspect the state of the 
Church — the behavior of the clergy, and administering the Apostolic 
rite of Confirmation. There is in this canon, also, an opinion given as 
to the frequency of such visitations. Beyond this, the canon offers 
nothing on the matter before us. Again — canon 26, of the same year, 



312 DUTY OF MINISTERS 

administer the Communion on a visitation, was anywhere ex- 
pressly bestowed by canon or rubric of the Protestant Epis- 
copal Church in the United States. 

To those who can regard this proposition as sound, there 
is an end of the question, and the claim of the Bishop cannot 

specifies the duties of the clergy in relation to such visitations. But 
here we have simple provision made for carrying out the foregoing 
canon. Obviously there is here no provision for administering the 
Communion, or ordering and taking up a collection, as constituting 
any part of an Episcopal Visitation. But if the Bishop, by virtue of 
the Divine right of office, may insist on the latter, why are regulations 
placed around him in the exercise of the other rights pertaining to his 
office on such occasions, and none here ? As we have specific canons 
regulating the duties of both Bishop and presbyter on these occasions — 
but in reference to neither is there any requisitions made on the points 
involved in this correspondence — we conclude this Church gives no 
such right to the Bishop, nor imposes any corresponding obligation on 
the presbyter. The same conclusion, precisely, would follow a fair 
induction and interpretation of the rubrics wrought into our Communion 
service. So also, we should reach the same results from the careful 
specification and provision made for the administration of the Commu- 
nion by the Bishop, as invariably accompanying certain Episcopal 
acts — as at the consecration of Bishops — ordinations of presbyters and 
deacons, and consecration of churches. 

" But further — this whole matter has been up for action before an 
ecclesiastical tribunal of this diocese. Here we might look for a deci- 
sion; but we find none. No law is cited, nor is any definitive opinion 
offered on the point now before us. The accused was acquitted on this 
charge. The court even admit the absence of all canonical legislation 
then; and the absence of all subsequent action leaves the matter just 
where it stood. There being no law of the general Church — nor any 
distinct legislation in our own diocese — and there being a manifest 
and careful refraining from all explicitness of expression as to a deci- 
sion by a court appointed in a given case in this diocese, on this very 
point, it is plain to the undersigned that the question yet remains with- 
out the initiatory step to a decision. 

u The undersigned further report, that the refusal of the Bishop to 
administer the rite of Confirmation, and visit the parish of Christ 
Church, Baltimore, virtually involves the exclusion of said congrega- 
tion from all the benefits of the Episcopal office, and that on grounds 
and for reasons not satisfactory to the undersigned, and inconsistent 
with the constitution, rubrics and canons of this Church." 



ON EPISCOPAL VISITATIONS. 313 

be sustained. In the humble judgment of the author it seems 
wholly untenable. 

But again, another position was taken, a very proper and 
legitimate subject for argument and criticism, viz : that the 
rubrics and offices and canons of the Church justified the con- 
clusion, that the power upon a visitation was restricted to the 
acts enumerated, and directed to be performed, and thus ex- 
cluded, by a just inference, any direction of the services, except 
in the few special cases mentioned. To this part of the argu- 
ment I have endeavored to do justice in the note. ! 



1 It was insisted on the part of the Rev. Mr. Trapnell, that the 
31st canon of 1832 applied to the case. It forbids any clergyman of the 
Church from officiating either by preaching, reading prayers or other- 
wise in the parish or parochial cure of another, without his express 
permission. That the term Clergyman included a Bishop, and hence as 
a general thing, the canon excluded him. Any exceptions must arise 
from the rules established in other canons. These exceptions were to 
be found in the 25 canon declaring that the Bishop shall visit for the 
purpose of examining the state of his Church, inspecting the conduct 
of his clergy, and administering the rite of confirmation. And that 
the admitted custom of a Bishop's preaching at a visitation, rested upon 
the basis of courtesy of the Ptector. 

The answer to this argument was, that the canon was undoubtedly 
adopted for a different purpose and with another intent. It was to pre- 
vent the intrusion of brother clergymen into a parochial cure, and set- 
ting up rival congregations. Mr. Trapnell, to a certain extent, agrees 
with this. (p. 102.) That if it is made out, that the Bishop as chief 
pastor had the right of officiating upon a visitation, it would be a very 
strained and unwarranted construction of the canon to hold that it meant 
to abolish the right entirely. Something more explicit was demanded. 
The difference is very marked. The 31st Canon is, as to ministers, oth- 
er than the Bishop, only declaratory of the long established law of the 
Church, and regulating the application of that law. But clearly, the 
laws of the Church, unless we have none but what has arisen from our 
own enactments, gave the Bishop a right to officiate on these occasions 
before the canon; and if so. then, as clearly, there should be some- 
thing more decisive to annul that right. 

Again, it was pressed that the enumeration in the 25th canon, sec- 
tion 1, that the Bishop shall visit the churches is his Diocese, £i for 
the purpose of examining the state of his Church, inspecting the 



314 DUTY OF MINISTERS 

And here the author cannot but remark that the argument 
on behalf of those who deny a Bishop's right seems to resolve 
itself into a narrow point. The leading position is " that the 
Bishop has no authority antecedently to ecclesiastical law," 
(TrapnelPs case, p. 110) — meaning, it is presumed, express 
institution of the Church. If the question is met on this nar- 
row basis, the supporters of the right may insist that by such 
ecclesiastical law, the power claimed has been recognized and 
exerted in every age and every church of which we have a rec- 
ord ; that a known and universal dogma of that law, viz : the 
chief pastorship of a Bishop, involves the authority — that com- 

behavior of his clergy, and administering the Apostolic rite of confir- 
mation,'' restricted and defined the objects of the visitation, and the 
power of a Bishop upon the same. 

The answer was, that, if a power to visit, and a power then to direct 
the services, is proven to have been vested in a Bishop by the long set- 
tled law of the Church, it could not be taken away by an enumeration 
merely of some of the offices he was to perform on such an occasion, 
and of some of the objects to be obtained. The Bishops are directed to 
visit— a declaration of what was their undoubted right and duty inde- 
pendently of the Canon. They are directed to visit for the purposes 
pointed out as specially to be observed. Now if the power and obliga- 
tion to visit had emanated solely from the Canon, the argument would 
have been irresistible, which would make that canon the limitation of 
the authority. Bat where are the words of exclusion — of a withdrawal 
of a pre-existent power ? 

Again — the rubric in the Communion Office was relied upon — that 
the Priest was to " order the bread and wine," " to say the prayer of 
consecration, &c," while it is provided that the absolution and the 
benediction must be pronounced by the Bishop if present. 

It was answered that the phrase could not mean parish priest exclu- 
sively, or it would not merely negative a Bishop's power ever to ad- 
minister the communion, but prevent the communion in a parish where 
there was no priest called, and even the reading of the absolution by 
a minister invited to officiate for a day. It meant Priest as designating 
a member of that order which could administer the communion, and 
a Bishop was clearly such j that in directing that he only when pre- 
sent must perform a certain part of the office, he was not excluded from 

the rest. 

This course of reasoning, it will be seen, is clearly put forth in the 
report of the majority. 



ON EPISCOPAL VISITATIONS. 315 

ing closer to our own time, it is a power existing in our moth- 
er Church, and brought with the office of Bishop, to our own. 
"When a Bishop exercises a right recognized or conferred by 
law, he is as strictly under the law, as when he refrains from 
an act prohibited by that law, or adheres to the forms prescri- 
bed by it for any exertion of power. Thus in the author's 
view the position of the opposers of a claim must rest upon 
this. That a Bishop has no power in our Church, except such 
as by its express enactment or by necessary inference from 
such enactment is conferred. If this, in the author's opinion 
indefensible proposition, is true, then they who deny the power 
are right, but not otherwise. 

Another case in relation to the visitation of a Bishop 
occurred in Ohio in 1848. In the address of the Bish- 
op to the Convention of that year, he says : — " If there be 
any thing which the discipline of the Church must be consid- 
ered as designed to secure, it is that the Bishop of a diocese in 
his visitation of parishes shall have his official acts therein re- 
cognized and respected by the parishes as official, and not 
treated directly and purposely as being a mere private affair, 
which the parish might notice or not, respect or not, at its 
pleasure." The case which produced these observations was 
in substance this : — A pamphlet which it was alleged reflected 
grossly upon the Bishop, had been placed or inserted upon 
the records of the parish. The Bishop pointed out the impro- 
per use thus made of the records. On a subsequent visitation 
the Bishop stated that he should visit the parish no more until 
the relation between himself and the parish were rectified. 

The facts were stated to the Convention, with a clear inti- 
mation of the Bishop's opinion that the redress he possessed, 
viz. — of a public admonition, and a refusal to visit the parish, 
was exhausted, and that the remedy was with the Conven- 
tion by declaring a forfeiture of the right of representation and 
union. The Convention ultimately resolved that the conduct 



316 DUTY OF MINISTERS, ETC. 

of the parish met with its decided and emphatic condemna- 
tion. That it approved of the determination of the Bishop to 
abstain from further visitation until the authorities gave him 
assurances that the pamphlet had never been entered in the 
records, and would never be; or else had been or should be re- 
moved therefrom ; and until they recalled certain communica- 
tions and charges particularized. 

There is also a case in Massachusetts connected with the 
Visitatorial power and office. The Bishop has for several years 
refused to visit the Church of the Advent. The grounds of 
this refusal are not any violation on the part of the Rector or 
congregation, of any rubrical or canonical express regulations. 
The Bishop has considered certain arrangements adopted and 
certain forms observed in the services within the chancel as 
of evil tendency, and injurious to the Church. 

Now what is the principle most prominent inall these ca- 
ses in our Church ? Decidedly the principle, that there is plant- 
ed in a Bishop some authority not indebted for its birth to the 
written law of this particular Church ; a power transmitted 
and inherent, which positive enactment is necessary to limit, 
not to bestow. "Where is the written law which enables the 
Bishop of Massachusetts to say that he will not visit a particu- 
lar church, though bidden to visit every church, because in his 
conscience he believes that church is wandering into error, but 
not by violating any express commandment ? Where is the 
written clause in this Church's laws, which justifies the Bish- 
op of Ohio in refusing his visitations, when the vestry of a 
church has placed upon its records, what to him is a disparag- 
ing and offensive document? Where is the published enact- 
ment in our code, which sanctions the refusal of the Bishop of 
Maryland to visit, because a Rector denies hiirf the right to 
administer the Communion ? Each of these cases rests upon 
the great principle of a power which positive enactment of our 
own never gave — which must be found to be annulled or cur- 



USE OF THE BOOK OF COMMON PRAYER. 317 

tailed by constitution or canon, by usage, or consent, or else 
remains in its primitive, its scriptural, its impregnable force, 
dignity, and extent. 



TITLE V. 

OF THE USE OF THE BOOK OF COMMON PRAYER. 

[Canon XLY., General Convention, 1832.] 

" Every minister shall before all sermons and lectures, and 
on all other occasions of public worship, use the Book of Com- 
mon Prayer, as the same is, or may be established by the au- 
thority of the General Convention of this Church. And in per- 
forming said service, no other prayer shall be used than those 
prescribed by the said book." 



The first canon on this subject was the tenth of 1789, 
which was as follows :-— Every Minister shall before all ser- 
mons and lectures, use the Book of Common Prayer, as the 
same shall be set forth and established by the authority of 
this or some future General Convention ; and until such estab- 
lishment of an uniform Book of Common Prayer in this Church, 
every minister shall read the Book of Common Prayer direct- 
ed to be used by the convention of the Church in the State in 
which he resides ; and no other prayer shall be used, besides 
those contained in the said book. 

The 34th Canon of 1808 was identical with the present. 

The last clause of the canon of 1789 became inoperative 
after the Book of Common Prayer was adopted. 



The eighth article of the Constitution prescribed that a 
Book of Common Prayer, &c, when established, should be used 
in all the dioceses. That book was established — and thus be- 
came the law of every clergyman in conducting all public 
worship. He is forbidden to use any other prayer than these 
21 



318 THE USE OF THE BOOK 

set forth, and he can neither vary, nor properly omit any of 
them as directed to be used. Further, by the 7th article of the 
Constitution, he is required to subscribe a declaration, a part 
of which is this—-" I do solemnly engage to conform to the 
doctrines and worship of the Protestant Episcopal Church in 
these United States." The Prayer Book is the formula of this 
worship, and the rubrics being a portion of it, are equally 
binding as the rest. 

Thus I apprehend that conformity to the Book of Common 
Prayer, and the rubrics as part thereof, is as absolutely bind- 
ing in our country upon every clergyman, as it is in England 
under the acts of Uniformity. 1 

The neglect and omission to use the Book on the occasions 
prescribed— the addition of any thing in the shape of prayer to 
it, at any rate before sermon, 2 is therefore a violation of 
the constitution and canons, and presentable of course. 
"Whether a publication in support of opinions tending to what is 
termed the depravation of the Prayer Book is presentable, has 
not I believe been judicially settled in any case in our 
Church. Upon that subject the case of Sanders vs. Head is 
very instructive. An abstract of it is inserted in the note. 
The 37th canon of 1832, it may also be observed, includes 
" disorderly conduct," among the triable offences. 3 

1 The acts of Uniformity are chiefly the- 13 and 14 Car. 2, cap 4. — 
Also the 3 Ed. 6 ; c. 1. 5 Ed. 6. cap. 1. and 1 Eliz. c. 2. Sir John Nich- 
oll in Kemp vs. Fricks, 3 Phillimore, 268, says, that the directions con- 
tained in the rubric are of binding obligation and authority. The ru„ 
brics form a part of the statute law of the land. 

9 See Dr. Hawks' note to Const, and Canons, p. 377. 

8 Sanders vs. Head. 3 Curteis' Rep. 565. Mr. Head was proceeded 
against by articles for having offended against the laws, statutes, con- 
stitutions and canons ecclesiastical of the realm, in having written and 
published, or caused to be published in a newspaper, a letter entitled, &c. 
" in which it was openly affirmed and maintained that the Catechism 
and the order of Confirmation in the Book of Common Prayer contains 
erroneous and strange doctrines; and wherein were also openly affirm- 



OF COMMON PRAYER. 319 

ed and maintained other positions in derogation and depravation of the 
said Book of Common Prayer.'"' 

The articles are set forth at length : they recite, but in general terms, 
what were the laws and canons against the offence ; that the party was 
a Minister in holy orders instituted to a particular parish named ; the 
publication of the letter, with time and place : and in a separate article 
set forth certain passages of the letter to substantiate the general charge. 

The publication being admitted, the questions which arose were as 
to the legal sufficiency of the articles, and whether the passages in the 
letter were in depravation of the Prayer Book. 

One objection was that the statute or canon under which the offence 
was to be brought, was not specifically set forth. This was overruled, and 
upon this ground, that whenever the general law ecclesiastical is re- 
lied upon, it is not necessary to plead specifically ; where the offence is 
one generally cognizable in the Ecclesiastical Court, the particular stat- 
ute or canon need not be pointed out. That this point was fully dis- 
cussed in Witson vs. McMath (3 Phillimore 67.) Where however it is 
intended to proceed for a particular penalt) 7- or punishment given in a 
particular statute, the statute should be set out. 

It is not necessary to cite the passages which the Court quote as 
proving the truth of the allegation. They are calculated to shock the 
mind of every one who remembers the ordination vow of a priest with 
regard to the Book of Common Prayer. 

The learned judge then proceeds to a point of no little moment upon 
a question which may arise with us. 

He states that the counsel of Mr. Head had contended that the case 
must be brought within the 4th section of the act of Elizabeth, provi- 
ding that if any minister shall preach, declare, or speak any thing in 
derogation or depraving of the Book of Common Prayer, or any 
thing contained therein, or any part thereof, and shall be lawfully con- 
victed, he shall be punished, &c. But he says, that the present was not 
a proceeding under that statute, but on the general law by which eve- 
ry clergyman is bound to conform to the Book of Common Prayer, un- 
der his subscription, and the canon or general law of the Church : and 
that a clergyman could, after this, publish any thing he saw fit against 
the Liturgy or Prayer Book, would be a monstrous proposition. 

Caudrey ; s case, 5 Coke 1, is stated minutely from the Report it- 
self, and deserves much consideration. 



CHAPTER V. 



TITLE I. 
DIFFERENCES BETWEEN MINISTERS AND CONGREGATIONS. 

[Canon XXXIV. of General Convention, 1832.] 
" In oases of controversy between ministers who now or 
hereafter may hold the rectorship of churches or parishes, and 
the vestry or congregation of such churches or parishes, which 
controversies are of such a nature as cannot be settled by 
themselves, the parties, or either of them, shall make appli- 
cation to the Bishop of the diocese, or in case there be no 
Bishop, to the convention of the same. 

" If it appear to the Bishop and a majority of the presby- 
ters convened after a summons of the whole belonging to the 
diocese, or if there be no Bishop, to the convention, or 
the Standing Committee of the diocese, if the authority 
should be committed to them by the convention,) that the 
controversy has proceeded such lengths as to preclude all 
hopes of its favorable termination, and that a dissolution of 
the connection which exists between them is indispensably 
necessary to restore the peace and promote the prosperity of 
the Church, the Bishop and his said presbyters, or it' there be 
no Bishop, the convention or the Standing Committee, if the 
authority should be committed to them by the convention, 
shall recommend to such ministers to relinquish their titles to 
the rectorships on such conditions as may appear reasonable 
and proper. 



322 DIFFERENCES BETWEEN 

" If such rectors or congregations refuse to comply with 
such recommendation, the Bishop and his presbyters (or the 
convention or Standing Committee, if authorized, with the 
aid and consent of a Bishop) may, at their discretion, proceed 
according to the canons of the Church to suspend the former 
from the exercise of any ministerial duties within the diocese 
or state, and prohibit the latter from a seat in the convention, 
until they retract such refusal and submit to the terms 
of the recommendation ; and any minister so suspended shall 
not be permitted, during his suspension, to exercise any min- 
isterial duties in any other diocese or state. 

" This canon shall apply also to the cases of associated rec- 
tors and assistant ministers and their congregations." 



The former canons on this subject were the 4th of 1804 f 
and the 32d of 1808. That of 1804 was the same as the present 
canon, with a few verbal variations. That of 1808 was also 
the same, but the following clause was added : 

" This canon shall not be obligatory upon the Church in 
those states or dioceses, with whose usages, laws or charters 
it interferes." 

This was omitted in 1832. Dr. Hawks states that the 
origin of this canon was to meet a pressing and particular 
case. 1 

Bishop "White says, " The canon deserves the name of a 
necessary, but it is hoped only a temporary evil. The appre- 
hension of the abuses of it has been verified." 

The Bishop questioned its principle on the ground that 
there should be no severance from a pastoral charge except as 
the result of a trial for alleged misconduct, which is most 
agreeable to the idea of exalting law above will. 2 

The case referred to by Dr. Hawks is stated in the note.* 

1 Constitution and Canons, 34. 

2 Memoirs of the Church, p. 248, written it is supposed about 1820. 

8 The case which led to this canon was that of a minister in New 



MINISTERS ANDCONGREG-ATIONS. 323 

The first point in consideration is from whom § i # 
the application should come, and the method of Application, 
making it. In February and March, 1849, the BYWHOM - 

Jersey, and the history of it will throw light upon the meaning and 
intent of the canon. 

On the 6th of June, 1804. a memorial was presented to the conven- 
tion from the churchwardens, vestrymen, and sundry members of 
Trinity Church, Newark, stating that unhappy differences existed 
between the rector and congregation, requesting the convention to in- 
terfere, and devise some means to put an end to such divisions, which 
threatened the existence of the Church. 

A committee appointed for that purpose reported, that considering 
that the usefulness of a minister essentially depends on the preserva- 
tion of harmony between him and his congregation, and that the cause 
of religion and prosperity of the Church must be materially affected, 
while the disputes and discontents continued in the Church, they re- 
commended, as the only means in their opinion of restoring peace, that 
the Rev. Dr. U. Ogden do resign the rectorship and surrender the pro- 
perty belonging thereto ; and that $250 be allowed and secured to him 
from the funds of the church during his life. 

The vestry of Trinity Church assented to the terms proposed. The 
Hev. Dr. Ogden refused. 

The canon of the General Convention was passed in September, 
1804. 

A special convention was then held in New Jersey in December, 
1804. Dr. Ogden read a paper declaring that he withdrew himself 
from the Protestant Episcopal Church, but that he would still continue 
to discharge his duty as rector of Trinity Church, Newark, and as a 
minister of the Church of England, conformably to the constitution and 
charter of his Church and his letters of orders from the Bishop of Lon- 
don. He then withdrew. 

A memorial was then presented from the wardens and vestry of 
Trinity Church, Newark, stating that a very unhappy controversy ex- 
isted between the Rev. Dr. Uzal Ogden, the rector, and the wardens, 
vestrymen and congregation of the said church, which was of such a 
mature as to threaten the very existence of the church ; that it had 
proceeded such lengths as to preclude all hopes of an amicable termi- 
nation, and that, in their opinion, nothing short of a dissolution of the 
connection between them could restore the peace of the church. 

The facts being established to the satisfaction of the convention, it 
was resolved as follows : 

" It appearing to this convention that certain controversies are now 
existing between the Rev. Dn U. Ogden, &c, and the vestry and 



324 DIFFERENCES BETWEEN 

canon received much consideration in a case in the diocese of 
New- York. Among other points, this one was discussed. 

It was agreed to by all the members of the Standing 
Committee, that where the application purported to come 
from the vestry, a majority of the members must be parties to 
it ; that is, one churchwarden and the major part of the 
vestrymen. 

It was insisted, and by the highest law authority in the 
committee, that this should be the action of a vestry strictly, 
that is, when duly convened and acting ; not of the vestry- 
men, as distinguished from the legal corporate body. By the 
statute of New- York, the wardens and vestrymen form a 
vestry by themselves, if there is no rector ; but if there is a 
rector, then they together with the rector form it ; and al- 
though a meeting may be held, upon notice either of a rector 
or a warden, yet the board is not competent to transact any 
business unless the rector, if there be one, be present. 1 

congregation of, &c, which are of such a nature as cannot be settled 
by themselves, and which have proceeded such lengths as to preclude 
all hope of a favorable termination, and that a dissolution of the con- 
nection which exists between them is indispensably necessary to re- 
store the peace and promote the prosperity of the said church, it is 
therefore resolved, that this convention advise the said Rev. Dr. U. 
Ogden to resign his title to the rectorship of said church within thirty 
days from this date, and they advise the congregation, upon such re- 
signation, to secure to him the sum of $250 per annum during his life. 
And if he shall refuse to comply with the terms above-mentioned, then, 
and in such case, authority is hereby given to the Standing Committee 
of this state, with the aid and consent of a Bishop, at their discretion, 
to proceed according to the canons of the Church, to suspend the said 
Rev. Dr. Ogden from the exercise of any ministerial duties within this 
state/ 7 

It appears that in May, 1805, the Standing Committee acted under 
the resolution, and requested the Right Rev. Bishop Moore to meet 
them at Newark to give his aid and consent to the proceedings. And 
subsequently Dr. Ogden, with the assent and confirmation of the 
Bishop, was suspended from the exercise of ministerial duties within 
the state. 

ilAct of 1813. Sess. 36, Ch. 60. 2 R. L., p. 212. 



MINISTERS AND CONGREGATIONS. 325 

To this it was objected that the canon would thus be 
made of no effect at the pleasure of the rector, so far as a 
vestry application was concerned ; that by providing for the 
case of a difference between a rector and a vestry, it presup- 
posed a distinction and separation of the two, and that the 
phrase should be construed vestrymen. 

The provisions as to presenting a clergyman were referred 
to. In North Carolina and Florida, for instance, the present- 
ment may be made by " the vestry of the parish." In Geor- 
gia, " by the wardens or vestrymen of the church." In Illinois, 
" by the major part in number of the vestry of the church." 
In Delaware, by a " majority of the vestry in a meeting duly 
convened." 1 In New- York, in all the canons prior to 1834, 
the phrase was, that the presentment should be by the vestry 
of the church. In October 1834, it was changed to the present 
form, " the major part in number of the members of the ves- 
try." The question thus arising was not passed upon, because 
there was not a majority even of vestrymen signing the appli- 
cation. 

Again, in the same case, it was discussed in what manner 
the first step should be taken on the part of the congregation, 
where the vestry did not apply. The general opinion was 
that the congregation should be convened by a notice, which 
any members were competent to give, stating the object of the 
meeting, so that a public expression of views should be had. 
A resolution to the effect that a controversy existed between 
the rector and congregation, which could not be settled by 
themselves, and that an application be made pursuant to the 
canon in such case provided, would be the proper mode. 

After the communication of this opinion, a vestry meeting 
having been called by the rector, a resolution was adopted by a 
regular majority, setting forth that controversies existed which 

1 These provisions will be found in the canons of the dioceses 
named. 



326 DIFFERENCES BETWEEN 

in the opinion of the vestry could not be amicably settled, and 
that application be made to the standing committee for pro- 
ceedings under the 34th canon. This of course was a regular 
and sufficient application. 

From the statement in the preceding note of the Rev. Mr. 
Ogden's case, I cannot determine whether the wardens and 
vestrymen had regularly met as a vestry, and adopted the 
memorial or not. 

In the case of Rev. Cave Jones, in 1811, the vestry was 
regularly convened, (he was however an assistant minister,) 
and the resolution recited, that differences and controversies 
existed between the Rev. Cave Jones, one, &c, and this vestry, 
arising out of the publication entitled " A Solemn Appeal to 
the Church," which are of such a nature as cannot be settled 
between them. And it was resolved that application be made 
to the Bishop of the diocese pursuant to the 32d canon of the 
G-eneral Convention. And that he be requested, with the as- 
sistance of his presbyters, to proceed upon the subject matter 
according to such canon. 

§ 2 - The application being made in a sufficiently for. 

otick of ma j an( j re g U i ar mode, the Bishop becomes justified 

THE 

Application * n taking the next step under the canon, that is t 
see that notice of the application has been or shall 
be given. 

In the case of Mr. Ogden, this was done by the Convention 
ordering the Secretary to serve a copy of their resolution upon 
him, and the Standing Committee gave him notice of their 
proceedings. In the case of Mr. Jones, the Bishop, upon re- 
ceiving the resolutions of Trinity Church, directed a copy of 
the proceedings to be served upon him, with a notice of the 
time and place of his convening the presbytery. And in the 
case in New- York in 1849, before mentioned, the committee 
intended to give the rector notice, and a copy of the papers 
laid before them before proceeding. He however had procured 



MINISTERS AND CONGREGATIONS. 327 

them, and transmitted his own reply and documents before 
that could be done. 

Although such a notice to and hearing of the rector is not 
prescribed, yet it is suggested that it would be proper to give 
it before a call of the presbyters. 

The next, and a very important point of the § 3 - 
canon is, as to the inveteracy of the disputes ; 

THE DISPUTES. 

whether the controversies cannot be amicably set- 
tled. Undoubtedly the ecclesiastical authority is not bound 
to interfere until it is fully satisfied that the dissensions are 
so fixed and obstinate that an amicable settlement is almost 
impossible. In determining whether the initiatory step should 
be taken, regard may be had to the matters which are pre- 
scribed in the canon as justifying what is in fact a sentence 
of resignation of a cure. The ecclesiastical authority is to 
find that all hope of a favorable termination of the contro- 
versy is precluded — that a dissolution of the connection is 
indispensably necessary to restore the peace of the Church, 
and promote its prosperity. 

Again, what is the description and extent of the dissen- 
sions which warrant an interference under this canon ? No 
strictly correct definition can be made. On the one side, how- 
ever, they are not to be such as are the proper subjects of a 
presentment, or duty to the Church requires that proceeding. 
On the other side they ought not to be those occasional and 
almost unavoidable differences or bickerings which will arise 
between a pastor and portions of his congregation. The ques- 
tion can only be rightly determined according to the circum- 
stances of each case, cautiously bearing in mind the sound 
principle, that the door should not be too readily opened for 
such applications, and that such a severance of the relation is 
against the policy and wishes of the Church. 

As to precedents — in the case of Dr. Ogden the ground of 
difference was a tendency to doctrines and practices incon- 



328 DIFFERENCES BETWEEN 

sistent with the principles and rules of the Church, an over- 
bearing conduct and assumption of control in temporals. In 
the case of the Rev. Mr. Jones, a pamphlet had been published 
which the committee of the vestry thus speak of : 

" The committee having considered the subject referred to 
them, are of opinion that the pamphlet lately published by 
the Rev. Mr. Jones, calls for the serious attention of the 
Board. The evident tendency of appeals to the public on the 
subject of private differences between ministers of the (xospel, 
must in all cases be to weaken the respect justly due to the 
clerical office, to destroy its influence, impair the discipline 
and government of the Church, and to bring reproach upon 
the cause of religion." 

This report was adopted by the vestry. The denial of the 
imputed tendency of the publication, the assertion of the right to 
issue it, surely constituted a difference of a very serious nature. 

§ 4 - It will be noticed that the Bishop is to summon 

ho are a ^ ^ e presbyters belonging to the diocese to act in 

TO BE 

c^nr^T. the case. This summons of the whole number 

SUMMONED. 

seems indispensable, and Dr. Hawks remarks that 
it renders the canon very inconvenient, and that the practice 
has been to convene a portion only. ( Constitution and Canons, 
p. 316.) This can scarcely be right. Although a majority of 
the presbyters who actually assemble will be sufficient to de- 
cide, yet all should be called. It is not stated in the report of 
the case of the Rev. Cave Jones how the presbyters were 
summoned, but the act of suspension recites that that was 
done by the Bishop and the majority of the presbyters assem- 
bled. 1 

Again, in case of there being no bishop, the application is 
to be made to the convention, and I presume that under the 
canon, the convention may act without any formal convoca- 
tion of the presbyters. Indeed these are supposed to be present. 

1 Davis' Report of the Case ) p. 11. 



MINISTERS AND CONGREGATIONS. 329 

Another question arises : Suppose the power is delegated 
by the convention to the standing committee, may they not 
act without summoning the presbyters ? This seems the 
true meaning of the canon, although the convention in delega- 
ting the power might prescribe such a summons, or direct a 
certain number of presbyters to be convened. But as to the 
final act of sentence upon a refusal to abide by the decision, 
the standing committee must call in the aid of a Bishop, and 
so, I apprehend, must the convention. Indeed the general 
canon as to sentences makes this necessary. 

By the 6th canon of the diocese of Maine, in case of dif- 
ferences between the misisters and their congregations, when 
the diocese is without a bishop, the standing committee shall 
have the power of settling such differences, agreeable to canon 
34, of the General Convention of 1832. 

In 1847 the Committee on Canons, proposed a new canon 
in place of the present, providing that whenever a difference 
shall exist between a rector, whether a Bishop or presbyter, 
and the congregation or congregations of his parish, and there 
is no probability of an amicable adjustment, the same, not be- 
ing the subject of impeachment or canonical censure, may be 
referred to the determination of arbitrators. 

The mode of appointing the arbitrators is then prescribed, 
and the award it is declared shall be binding and conclusive 
upon the parties. The proposition was not acted upon. 

The provision in the Scottish Church is this — (Canon 35 of 
1838. 4 Burns 701.) " In any differences which may arise be- 
tween a pastor and members of his flock, which cannot be 
amicably settled, the matter in dispute must be carried in the 
first instance before the ordinary ; and if either party think 
himself aggrieved by his decision, then the case may be appeal- 
ed by letter or petition to a synod of Bishops, and no appeal 
against the ordinary's decision shall be admissible unless the 
contending parties solemnly promise to hold the sentence of a 



330 DIFFERENCES, ETC. 

majority of the Bishops present final and conclusive." By the 
34th Canon a synod of Bishops is to be held annually, and not 
less than three must be present. 

As far as my information extends, the canon is not now 
looked upon with the same disfavor as it was by Bishop 
White. The fact is, the canon is a compromise between the 
principle of indissolubility of the relation of pastor and people, 
except on grounds justifying a presentment, and the absolute 
right of the people to dismiss at will. There are sometimes 
occasions of disagreement, which without much fault on eith- 
er side, poison the connection and destroy its benefits. Per- 
haps the Church has acted wisely in suffering a separation in 
such cases ; at least she has been wise in requiring the inter- 
position of her highest authorities, and their sanction in effect- 
ing it. ' 

It may be submitted whether the appointment of arbitra- 
tors to act as a quasi tribunal for the carrying out the disci- 
pline of the Church has any precedent in its history, especially 
as the arbitrators are to be or may be laymen exclusively ; 
and that a decision may be followed by the suspension of a 

1 The author would suggest for consideration, an amendment of the 
Canon of the following nature : 

The clause in the first paragraph c: in case there be no Bishop, to 
the Convention of the same," to be altered to, " the Standing Commit- 
tee of the same." 

The Bishop shall direct the Standing Committee, or if the applica- 
tion is made to the latter, the Standing Committee shall proceed, to in- 
quire whether such controversy has proceeded, &c. (following the lan- 
guage of that clause of the canon.) 

In making such inquiries, the Standing Committee may depute one 
or more of their own body when they shall deem it advisable, to make 
inquiry as to facts, and to report in writing upon the same. 

Where the application has been made to a Bishop, the Committee 
shall report the facts to him, with their opinion upon the case. 

The Bishop, or Standing Committee, if satisfied that the case is 
within the canon, shall recommend to the Minister to relinquish his 
Rectorship; (pursuing the^residue of the canon, with some apparent 
necessary alterations.) 



DISSOLUTION OF THE CONNECTION. 331 

clergyman. 1 It appears to the author (he submits it with great 
respect) that the novelty of the proposition is against its 
admission ; that in this, and in similar cases, the Standing 
Committee of a Diocese in its ordinary capacity, is the proper 
body to take all the initiatory measures, to make all the re- 
quisite inquiries, to institute necessary proceeding, and 
collect and embody facts ; and then to present the result to 
the Bishop for final decision, with an expression of their own 
opinion. J 



TITLE II. 
DISSOLUTION OF THE PASTORAL CONNECTION. 

[Canon XXXIII of General Convention, 1832.] 

" § 1. When any minister has been regularly instituted or 
settled in a parish or church, he shall not be dismissed with- 
out the concurrence of the ecclesiastical authority of the dio- 
cese ; and in case of dismission without such concurrence, the 
vestry or congregation of such parish or church shall have no 
right to a representation in the convention of the diocese until 
they make such satisfaction as the convention may require. 

1 It is true that arbitrators, in the usual sense of judges chosen by 
mutual consent, are well known in the canon law. But their decisions 
were subject to a reduction by the usual tribunals, being equivalent to 
an appeal. (Van Espen, Tit. Arb., Tome 2.) The proposed canon 
gives the right to either party to make the application, and coerce the 
arbitration. The decision also is to be final. 

2 In Feb. 1849, a case under the canon occurred in Ohio. The Bish- 
op and a number of the clergy assembled to consider the case of the 
Rev. Mr. Loutrel. They agreed to recommend the relinquishment of 
the party's title to the rectorship, his salary to be paid to the date of 
the sitting of the Council. A resignation followed. 

The canon was also applied in the case of the Rev. Norman Nash, 
in New Jersey, in the year 1834. 



332 DISSOLUTION OF THE 

" Nor shall any minister leave his congregation against 
their will without the concurrence of the ecclesiastical au- 
thority aforesaid; and if he shall leave them without such 
concurrence, he shall not be allowed to take a seat in any 
convention of this Church, or be eligible into any church or 
parish, until he shall have made such satisfaction as the ec- 
clesiastical authority of the diocese may require. 

" § 2. In case of the regular and canonical dissolution of 
the connection between a minister and his congregation, the 
Bishop, or if there be no Bishop, the Standing Committee, 
shall direct the secretary of the convention to record the same. 
But if the dissolution of the connection between the minister 
and his congregation be not regular or canonical, the Bishop 
or Standing Committee shall lay the same before the con- 
vention of the diocese, in order that the above-mentioned 
penalties may take effect. 

" This canon shall not be obligatory upon those dioceses 
with whose usages, laws or charters it interferes." 



The previous canons were the 2d of 1804, and the 30th 
of 1808. The former was almost identically the same as the 
present. In the latter the last clause, as to its obligation in 
particular dioceses, was inserted. 

This was induced by the action in South Carolina and 
other states, before mentioned. (Chap. J., p. 121.) 

The framers of this canon sought to discourage the too 
common change of the relation of pastor and people. To the 
29th canon of 1808 was added a clause peculiarly applicable 
to the present subject : " It is understood that the Church de- 
signs not to express an approbation of any laws which make 
the station of a minister dependent on anything else than his 
own soundness in the faith, or worthy conduct." 

And such has been the universal policy of the Church. It 
seems to have been felt that there was a nearness and sacred- 



PASTORAL CONNECTION. 333 

ness of tie between such parties as admitted not of severance, 
but for legal offences, or with the intervention of grave au- 
thority. The beautiful language of Lord Stowell as to an- 
other relation may well be applied to this : " "When people 
understand that they must live together, except for a very 
few reasons known to the law, they learn to soften by mutual 
accommodation, that yoke w T hich they know they cannot 
shake off. They become good husbands and good wives from 
the necessity of remaining husbands and wives ; for necessity 
is a powerful master in teaching the duties it imposes." 1 

We find at the close of this canon also the clause before 
adverted to, that it shall not be obligatory in dioceses, w T ith 
whose laws, charters or usages it interferes. 

Now, by both the canon and the common law, it was well 
settled that an incumbent once duly instituted was in for 
life, and could not be removed by the patron. He could only 
be dismissed upon a just sentence. The authority of Lord 
Coke as to the common law is frequently given. 2 

Yet a resignation into the hands of the Bishop was per- 
mitted, while one into the hands of the patron was forbidden 
by both laws. 3 "We can have no better judge in this case than 
Lynwood, who says positively, that " Renuntiatio facta in 
manus Laid etiam sponte non tenet" and therefore it must 
come into the hands of him who hath the ordinary jurisdiction, 
and therefore hath power to admit. 4 

The learned founders of our canons had undoubtedly this 



1 Evans vs. Evans, 1 Hag. Cons. Rep., p. 36. The "reasoning of Mr, 
Hume is also very strong, and admirably expressed. (Essay 19, on 
Polygamy and Divorce.) 

2 1 Inst., 343, b. 2 Inst., 357. Not's Rep., 157. 

3 This was forbidden by various canons, (among them, the 3d of the 
4th Council of Lateran.) They are stated in Bishop Stillingfleet's 
Discourse on Bonds of Resignation, p. 318. 

4 Ibid., p. 319. Noy's Rep., 157. 2 Coke, 63, 198. Gibson's Codex, 
vol. 2, page 869. 

22 



334 DISSOLUTION OF THE 

great principle deeply fixed in their minds. They also found 
a system of usurpation upon this principle by the laity, ex- 
tensively prevalent. They were compelled to respect it so 
far as to insert in the canon the clause in question ; but the 
qualification annexed to Canon 29 of 1808 equally applies. 
The phrase employed in the first part of the canon is, regu- 
larly instituted or settled ; thus meeting the case when the 
office of institution has not been used. 

As to the mode of proceeding, the Standing Committee of 
the diocese of New- York, in a case in June, 1848, adopted the 
following : "A copy of a resolution of a vestry was received 
fully dismissing the minister, and asking a concurrence there- 
in. The committee resolved that, in their opinion, a written 
application should be made by the vestry, setting forth the 
grounds and reasons why a dismission was sought, and which 
rendered it expedient or necessary, and asking the concur- 
rence of the committee to such dismission being made ; that 
an absolute dismission without it was premature and ir- 
regular." 

Afterwards, a copy of a resolution of the vestry was 
transmitted, resolving that an application be made for the 
concurrence of the ecclesiastical authority in a dismission, 
with a written application, setting forth the reasons and facts 
on which it was grounded. A copy of this had been sent to 
the minister, with notice that it would be presented to the 
committee. 

The reasons assigned being satisfactory, a resolution was 
passed to the following effect: "Application having been 

made to this committee by the vestry of Church, in the 

town of , for its concurrence in the dismission of the 

Rev. for certain reasons therein stated ; and it ap- 
pearing that such reasons are satisfactory, and notice of this 

application having been given to the said the Rev. , and 

he not appearing to oppose the same, thereupon it is resolved 



PASTORAL CONNECTION. 335 

that the assent and concurrence of this committee, as the ec- 
clesiastical authority of the diocese, be, and the same is here- 
by given to the dismission of the said the Rev. from 

the parish and Church of ." 

The canon, it will be perceived, forbids both the dismis- 
sion of the minister by the congregation, and the relinquish- 
ment by the minister. It has been considered in Connecticut, 
that a resignation and acceptance should receive a formal 
concurrence of the ecclesiastical authority. In the journal of 
that diocese for 1814, are to be found two cases, in which the 
intention to resign, and the acquiescence of the parishioners 
in such request at a regular meeting, was recited ; and there- 
upon, the Standing Committee made a formal record of their 
concurrence in the resignation, and declared the pastoral re- 
lation to be thenceforth dissolved. (Journals 1814, p. 35, 
Ed. of 1842.) I believe that the ordinary practice is to re- 
ceive and file the notice of the resignation and assent of the 
vestry. The concurrence of the committee may be implied 
from this, yet a resolution upon the minutes would be pre- 
ferable. 

A question of some interest arose in a case before the 
Standing Committee of j\ T ew-York, under this canon. The 
minister of the parish had ceased to officiate within it for 
about three months, and had officiated for the most of that 
time in another and vacant parish. It was not yet ascertain- 
ed, however, whether this was under a regular call, or a tem- 
porary invitation renewed from time to time. An opinion was 
expressed by the author, and agreed to by some of the other 
members, that if the fact of a formal call and acceptance had 
been made out, the incumbency of the first parish would have 
been ipso facto vacated, so that the vestry could have made 
a new call, and the committee could have issued letters of 
institution to a new minister. Care, however, should be 
taken that sufficient documentary evidence of the fact is 



336 DISSOLUTION OF THE CONNECTION. 

supplied. 1 It was unanimously agreed, that the facts as they 
stood, warranted a concurrence in the act of dismission. 

1 Bishop Gibson states that a voidance of one benefice takes place 
by the acceptance of another, incompatible without a dispensation. 
This is the effect of an act of parliament, where the first benefice is of 
the yearly value of eight pounds or over ; if under eight pounds, it was 
void by canon law, and the patron might present a clerk, and require 
institution immediately. Codex, p. 832, Tit. 34. 

The Council of Lateran, held in 1215, passed a canon declaring that 
whoever shall take any benefice with cure of souls, if he before shall 
have obtained a like benefice, shall ipso jure be deprived thereof; and 
if he shall contend to retain the same, he shall be deprived of the other; 
ar.d the patron of the former, immediately after his acceptance of the 
latter, shall bestow the same upon whom he shall think worthy. 

The canons of this council are recognized as adopted into the Eng- 
lish ecclesiastical law. 

In Alsten vs. Atlay, 7 Adol. & Ellis (Exch. Chamber) 811, the court 
(per C. J. Tindall) said : u There is no doubt that the right of presenta- 
tion [upon acceptance of a second benefice] accrued by the canon law, 
namely by the fourth Council of Lateran ; but it is equally clear that 
this canon has been recognized in this country, and has become part of 
the common law of the land. Holland's case, (4 Rep. 75, and Digby's 
case, 4 Rep. 78, and Evans vs. Ascough, Latch, 243.) The point to be 
decided is, what is the nature of that right given by that canon to the 
patron. Is it an immediate right of presentation in the then patron, 
when he chooses to exercise it without doing anything positively to 
avoid the interest of the then incombent, or is it only a right to avoid 
that interest by some act, and then to present, or to avoid it by the act 
of presentation only, such interest of the incumbent being valid, and 
the church full in the meantime ? 

'* That although the books use some variety of expression on the sub- 
ject, yet the substance of the authorities is, that the patron has a complete 
tight to present upon the cession by institution to the second benefice- 
No further act is necessary in order to make his presentation valid.' 7 

The Chief Justice then states the authorities : "Digby's case is a 
prominent one, where Chief Justice Popham and the whole court said, 
" that the first benefice is void byjnstitution to the second, without de- 
privation or sentence declaratory; although no lapse shall incur unless 
notice be given to the patron." 

It may be useful to notice, that upon a vacancy of a benefice, if the 
patron does not present within six months, the right falls to the Ordi- 
nary, which is termed a lapse. 

The case of The King vs. Priest, Sir W. Jones, 335, is also thorough- 
ly in point. 

After quoting the canon of Lateran, he says: cc The fair cor struction 



RELINQUISHMENT OF THE MINISTRY. 337 
TITLE IIL 
RELINQUISHMENT OF THE MINISTRY. 

[Canon XXXVIII, General Convention 1832.] 

" k 1. If any minister of the Church, (against whom there 
is no ecclesiastical proceeding instituted,) shall declare to the 
Bishop of the diocese to which he belongs, or to any ecclesias- 
tical authority for the trial of a clergyman, or where there is 
no Bishop, to the standing committee, his renunciation of the 
ministry, and his design not to officiate in future in any of the 
offices thereof, it shall be the duty of the Bishop, or where there 
is no Bishop, of the standing committee, to record the declara- 
tion so made. 

" § 2. And it shall be the duty of the Bishop to displace him 
from the ministry, and to pronounce and record in the presence 
of two or three clergymen, that the person so declaring has 
been displaced from the ministry in this Church. 

" § 3. In any diocese in which there is no Bishop the same 
sentence may be pronounced by the bishop of any other dio- 
cese invited by the standing committee to attend for that 
purpose. 

" § 4. In the case of displacing from the ministry as above 
provided for, it shall be the duty of the Bishop to give notice 
thereof to every bishop of this Church, and to the standing 
committee in every diocese wherein there is no bishop. And 
in the case of a person making the above declaration for causes 
not affecting his moral standing, the same shall be declared." 



The earliest canon which contained any regulation upon 
this subject, was the first of 1801. By that it was provided, 
that if any person having been ordained in this Church, or 

of the canon is, that upon acceptance of the second benefice, the clerk 
is deprived of the first jure ipso." 



338 EELINQUISHMENT 

having been otherwise ordained and admitted a minister in 
this Church, shall discontinue all exercise of the ministerial 
office without lawful cause, or shall avow that he is no longer 
a minister of the Church, or shall live in the habitual disuse 
of the public worship, or of the holy eucharist, according to 
the offices of this Church, such person on due proof of the same, 
or on his own confession, shall be liable to be degraded from 
the ministry. 

In the 26th canon of 1808, these provisions were inserted 
in the canon enumerating the offences for w T hich ministers 
shall be tried. The punishment however, was to be admoni- 
tion, suspension, or degradation, as the case might require. 

Then followed the 2d canon of 1817, in the words of the 
present 38th canon, except that the words, (against whom 
there is no ecclesiastical proceeding instituted,) are not to be 
found in it; and that the punishment might be admonition, 
suspension, or displacement. 

By the 7th canon of 1820, that of 1817 was repealed, and 
another enacted precisely the same in substance, and merely 
with the insertion of a few words to prevent a doubt which 
might have arisen under the former, as to the right to displace. 

Neither of these preceding canons, contained the clause 
as to no ecclesiastical proceeding being instituted against the 
minister. That clause was introduced in the 3d canon of 
1829, which also directed that the sentence to be pronounced 
should be displacement exclusively. 

Then in the revision of 1832, the present canon was adop- 
ted almost identically the same as that of 1829. 



§ l. To understand what cases are within the canon 

Cases within it will be useful first to advert to the general law 
the canon. of thfj Church independently of it. 

By the 6th of the Apostolical canons it was provided that 



OF TEE MINISTRY. 339 

no Bishop, Priest or Deacon should undertake any secular em- 
ploy upon pain of deposition. Bishop Beveridge observes 
that for a clergyman to engage in any lawful business for the 
necessary defence or good of the Church, such as to attend 
synods or state assemblies, comes not within this, or any 
similar canon. Bingham thus states the rule. (Antiq. Book 
vi. cap. 4, 4 1.) "I come now to speak of a third sort of 
laws which were like the Jews sepimenta legis, a sort of 
by-laws and rules made for the defence and guard of the 
former. Among these we may reckon such laws as were made 
to fix the clergy to their proper business and calling, such as 
that which forbade any clergyman from deserting or relinquish- 
ing his station without just ground or leave granted by his su- 
periors. In the African Church, from the time any man was 
made a reader, or entered into any of the lower orders of the 
Church, he was presumed to be dedicated to the service of 
Grod, so as thenceforth not to be at liberty to turn secular 
again at his own pleasure. And much more did this rule hold 
for Bishops, presbyters, and deacons. Therefore Cyril of Al- 
exandria, as he is cited by Harmenopilus says in one of his 
canons, that it was contrary to the law of the Church for any 
priest to give in a libel of resignation, for if he is worthy, he 
ought to continue in his ministry, and if he be unworthy, he 
should not have the privilege of resigning, but be condemned 
and ejected. The Council of Chalcedon orders all such to be 
anathematized as forsook their orders to take upon them any 
military office, or secular dignity, unless they repented, and 
returned to the employment which for Grod's sake, they had 
first chosen." 

One of the Constitutions of 1571 was thus : Semel autem 
reeeptus in sacrum ministerium ab eo imposterum non disce- 
dit; nee se aut vestitu, aut habitu, aut in ulla vihe parte 
geret prolaico (Apud. Gibson's Codex, Vol. 1, p. 184.) 

And the 76th canon of 1603 declares that no man, being 



340 RELINQUISHMENT 

admitted deacon or minister, shall from thenceforth voluntari- 
ly relinquish the same, nor afterwards use himself in the 
course of his life as a layman upon pain of excommunication. 

As elucidating the English law, I refer to the case so 
much discussed, of the Rev. Mr. Shore in 1844 s It is neces- 
sary to understand clearly the point decided. 

Mr. Shore being in priest's orders in the Church of Eng- 
land, had received a license from the Bishop of Exeter to offi- 
ciate in a private uncozisecrated chapel. That license was 
subsequently revoked. Notwithstanding this revocation he 
continued, as the libel alleged, to read the services and per- 
form the offices of the church in that chapel. For this he was 
prosecuted. 

It is to be here noticed thet there is not a rule of English 
canon law, more entirely settled than that which forbids any 
minister from officiating in an unconsecrated place without a 
license; nor that other rule which authorizes a Bishop to re- 
voke such license. 

Mr. Shore defended himself chiefly on the ground that he 
had qualified himself as a dissenting minister under one of the 
Toleration Acts, by which, upon the taking certain oaths, and ob- 
serving other provisions, a party was exempted from the penal- 
ies for non-conformity imposed by previous acts of Parliament. 

The reply given by both the judges who pronounced upon 
the case was this— That what was pleaded in defence was 
sufficient to exempt him from the statutory penalties \ but that 
did not touch the case. By his ordination vows, and the can- 
ons of the Church which he was subject to, he could not relin- 
quish the ministry and have his orders cancelled of his own 
will and without the consent of his diocesan ? unless by process 
of law ; that as neither of these facts appeared,, he therefore 
remained a minister of the Church, and as such punishable for 
offences committed against her rules of government. 
1 1 Robertson Ecc. Cases 335. 8 Abolphus & Ellis 640, 



OF THE MINISTRY. 341 

Thus Sir Herbert Fust in his opinion says : " Mr. Shore ad- 
mitted that he received the order of priest from the Church of 
England. Here again it was to be proved that a clergyman 
can divest himself at his pleasure of his orders ; but I heard noth- 
ing to establish that position. The spirit of the canon is cer- 
tainly at variance with such a position, as well as common 
sense." 

And Lord Denman when the case was in the Queen's 
Bench observed : " Mr. Shore cannot divest himself of the cha- 
racter of a priest in holy orders with which he has been cloth- 
ed by the authority of the Church of England when he was 
ordained by one of the Bishops, and when he promised canonical 
obedience to that Church ; from that character, or from that 
vow and promise, he can only be released by the same authority 
which conferred the one, and enjoined and received the other." 

In a letter of the Bishop of Exeter published in the Eng- 
lish Churchman in 1848, he says, " that it is utterly untrue 
that Mr. Shore is interdicted by the law of England, from 
preaching the Gospel under pain of being immured within the 
walls of a prison. There is no law ecclesiastical or temporal, 
in this part of Great Britain, which would subject Mr. Shore 
to imprisonment for a single hour for such an act. True it 
is, that having been ordained a deacon and presbyter in the 
Church, he cannot at his mere good pleasure divest himself of 
the sacred characters which under the most solemn vows to 
God and man, he sought and received from his Bishop. A ju- 
dicial process is necessary, which however, is a matter of very 
easy and inexpensive accomplishment to any one, who is ear- 
nest in seeking from conscientious motives to be relieved." 

It must be remembered in judging of the case of Mr. Shore, 
that he did not disclaim his character of a minister of the Church, 
nor unite himself with the Dissenters, and thus open the door 
for the judicial proceedings referred to ; but he insisted upon 
retaining his station — claimed to be in orders — and actually 



342 RELINQUISHMENT 

read the morning services, and otherwise officiated in an un- 
consecrated place, after the revocation of his license. 

I find in the proceedings of the Church in Connecticut, two 
cases in which the principle of a renunciation was recognized 
before the first canon ; but I am informed that in both in- 
stances the minister was a deacon, and that the distinction 
was taken by Bishop Jarvis between the case of a deacon 
and a priest in this particular. 1 

Oar own canon has fully met the case by substituting 
what may be termed an admission, for the articles and process 
of the English system. It remains to be seen in what in- 
stances it may be applied. 

It is clearly applicable to the case of a clergyman renounc- 
ing the ministry with a view to fall into the ranks of the 
laity. If upon an unhappy discovery that the assumption of 
his vows was made with haste and improvidence, or that sub- 
sequent development of character, or subsequent events have 
forced the conviction of unfitness upon his mind, he seeks to re- 

1 The following act took place at a convocation held at Stratford, 
June 3. 1795. Present, Bishop Seabury, &c. '"Whereas the Rev. D. 
P. has requested of the Bishop and his clergy in convocation, liberty to 
resign the pastoral charge of the parishes of R. &c, as well as to re. 
linquish totally the exercise of ecclesiastical functions — therefore, voted 
that his request be granted, and the resignation of his letters of orders 
be accepted. (MSS. Minutes of Convocation.) 

So in the year 1804, the convocation resolved as follows : " Whereas, 
Ezra Bradley, having been ordained deacon in this Church, hath de- 
clared his determination of relinquishing all claim to the character and 
function, and for a long time hath discontinued all exercise of the said 
office of deacon, and as appears fully to our satisfaction hath lived in 
the disuse of the public worship and holy eucharist according to the 
offices of the Church — therefore with the approbation of the clergy in 
convocation, we Abraham, Bishop of Connecticut, degrade the said 
Ezra Bradley from the office of deacon, and do pronunce the ordination 
of the said Ezra Bradley to the holy office of deacon, to be henceforth 
of no force or effect." 

It will be noticed that this sentence proceeds upon other clauses of 
the canon of 1801, as well as that of a declared relinquishment. 



OF THE MINISTRY. 343 

tire, the Church has opened to him this ready and quiet mode of 
departure. The seeds of affection may still linger in his breast, 
and prompt him, as little as possible, to affect her peace. The 
pressure of conscience forbids him to remain in his station, and 
the pride of human nature may rebel at an open trial and public 
exposure. The procedure under the canon affords the opportu- 
nity of enforcing discipline in the spirit of peace. 

Again, the canon has been treated as applicable to those 
who have been guilty of moral depravity, in the ordinary signi- 
ficance of the word. "We have the authority of Bishop Onder- 
donk of New- York, for saying that he was informed by Bishop 
"White that the original and leading motive for its introduction, 
was the great difficulty of obtaining testimony in cases of 
this very nature. Bishop Onderdonk was then Secretary of 
the Convention. 

Upon this topic I add an extract from the report of a sub- 
committee of the Standing Committee of New- York, made 
in the case of Dr. Forbes and others in February, 1850 : " It is 
also certain that this canon has been used in the diocese of 
New- York for the displacement of clergymen chargeable with 
immoral conduct, and with respect to whom the requisite 
testimony for the support of the charge might have been ob- 
tained. It would be painful to mention names, but a refer- 
ence to the report of Bishop Hobart for 1823, and of Bishop 
Onderdonk for 1843, will furnish to those who were acquaint- 
ed with the parties, adequate proof of the assertion. Indeed, 
it is known to have been the opinion of the former, and is that 
of the present Bishop, that even where testimony can be pro- 
cured, there are many cases in which the summary mode af- 
forded by the canon of ridding the Church of an unworthy 
clergyman, is much better than to encounter the uncertain- 
ties, delay, scandal, and often great expense which attend a 
trial." 

Again, the canon has been applied, and legally applied, to the 



344 RELINQUISHMENT 

case of a clergyman whose moral character, in the usual 
sense is unassailed, but who renounces from an unhappy- 
change of opinion as to doctrine or government ; and even ex- 
pressly with the view and intention of uniting himself with 
some other denomination. In the report before referred to, 
it is stated as follows: "It is believed that this canon has 
been, from the first, considered to be applicable to the case of 
clergymen desiring to leave the ministry of the Church, for 
the purpose of connecting themselves with other denomina- 
tions. It was so applied in this diocese between the con- 
ventions ofl822 and 1823, in the case of the Rev. Asahei Davis, 
who became a Universalist preacher. It was also applied in 
the case of the Rev. Mr. Tatham and the Rev. Jas. R. Bailey. 

■ ■ It has also been so administered in other dioceses. In 
Massachusetts, in the case of Mr. Askins, who joined the 
Romish Church, in that of Mr. Thorn in Delaware, who join- 
ed the Lutherans, and Mr. Mecham in Virginia, who united 
with the Methodists." 

It appears to have been sometimes considered that dis- 
placement is a punishment of less severity, or at least less 
ignominious, than degradation. But the 39th canon of 1832 
has effaced all such distinction, if it ever existed. " Deposi- 
tion, displacing, and all like expressions, are equivalent to 
degradation." Whether the conviction proceeds upon charges 
involving the most gross criminality, or upon changes of 
opinions which preclude the further serving at the altar of the 
Church, the sentence is the same, and cannot be greater. 

And even prior to the passage of this canon, it appears to 
have been the opinion of Bishop Ravenscroft, that the sen- 
tence of displacement would preclude a restoration of the sen- 
tenced clergyman to orders. Dr. Hawks states, that the 
Bishop would not degrade a minister who retired from con- 
scientious scruples, but displaced him ; yet, according to his 
recollection, thought that he could not be restored. I believe 



OF THE MINISTRY. 345 

that the term displacement is not to be found in any other 
canon than the present, and in the 39th of 1832. 1 

The question of the form of the renunciation § 2. 
underwent much consideration in the case of the The form of 
Rev. Dr. Forbes, in New- York, in 1849-1850. I— ■»«■«* 
add the statement and reasoning of the sub-committee upon 
that subject, which express in substance the opinion of the 
majority of the Standing Committee. 

" It is requisite that there should be satisfactory proof of 
the declaration having been made, for if the proof is defective, 
as it would be if the language were ambiguous, it would be 
in the power of the clergyman at a subsequent period to deny 
the fact of the declaration, and to claim that the action of the 
ecclesiastical authority, and the sentence pronounced upon it, 
were void. 

" What the proof of such renunciation shall be — whether 
it shall be oral or written — whether in the precise words of 
the canon, or in other words of equivalent import — and whether 
the declaration shall be recorded in the very words in which 
it was made, or in substance merely, are all points which are 
undefined by the canon, and are consequently left to the dis- 
cretion of the ecclesiastical authority. The canon does not 
prescribe any formula in which the relinquishment is to be 
made. It does not even require that it should be in writing." 
" Impressed with a sense of the necessity of the caution re- 
quisite in the exercise of this power, the Bishop of this diocese 
in the year 1839, addressing the Standing Committee as his 
council of advice, requested their opinion, whether the ex- 
pression to him by a clergyman in reference to the ministry : 
" I have resolved to abandon it forever," or words of similar 

1 In several of the former canons of Virginia, the phrase '-'Dismis- 
sion '"' and '• Dismissed." were used, and once in a sense distinguished 
from Degradation. See Canon 28 and 33 of 1785, 27 and 28 of 1787, 
and 27 and 28 of 1791. 



346 RELINQUISHMENT 

import, might be taken for the declaration supposed by the 
canon, and whether in recording a declaration, he was to 
state the words actually used, or to make the record in the 
precise terms of the canon. In reply, the Standing Commit- 
tee, acting as a council of advice, gave it as their opinion, 
" that the most safe and convenient rule will be to require 
from every clergyman desirous to relinquish the ministry, a 
written declaration under his hand, not only of his renuncia- 
tion of it, but also of his design not to officiate in future in 
any of its offices ; and 2d, that the declaration should be re- 
corded in the very words of the original." 

" In deference to this precedent, as well as from a convic- 
tion of its wisdom, the Standing Committee has made it a 
rule to request of every clergyman relinquishing the ministry, 
a written declaration in the words of the canon. But this 
rule is one of their own creation, not prescribed by any law, 
but adopted as the ' most safe and convenient mode ' of car- 
rying out the provisions of the Church. As a matter of 
course, it will operate in all ordinary cases ; but instances 
may occur, in which it will be found safe and expedient to 
relax it. In one case in this diocese, the letter of relinquish- 
ment was sent from a foreign country, and was in words sub- 
stantially of the same import as those in the canon, but not 
in the very language. It was received and the clergyman 
displaced." 

" The renunciation, where the offence is not of moral de- 
pravity, may be considered as the substitute of the proof of 
any charges which should be preferred. It is of itself a plain 
confession of unfitness for the ministry, and being accompa- 
nied with a resolution to forsake communion, is a confession 
of having rejected the Church herself, with all her authority, 
decrees, and institutions. Why then convene a court and 
summon witnesses to prove a violation of ordination vows in 
specific instances, or to substantiate particular charges of 



OF THE MINISTRY. 347 

heresy or schism, when the renunciation itself is a confessed 
violation of all ordination vows, and of every standard of doc- 
trine, Prayer Book, Offices, Articles and all ! This seems 
much like torture after confession." 

The first clause of the canon is, that " if any 
minister of this Church, against whom there is no e ccleciasti _ 
ecclesiastical proceeding instituted, shall declare to cal proceed- 
the Bishop, &c, his renunciation of the ministry, IXG depend- 
it shall be the duty of the Bishop to displace him 
from the ministry." 

The only case under this clause which I am aware of, 
besides that in New-York in 1850, (afterwards noticed,) is 
the case of the Rev. Mr. Dashiell in Maryland, in 1815. The 
Standing Committee reported to. the Bishop, that common re- 
port charged Mr. Dashiell with scandalous, immoral and ob- 
scene conduct, and recommended an investigation. This was 
commenced. The accused objected to the inquiry, and to the 
tribunal which was to conduct it. He addressed a letter to 
the Bishop, requesting that the proceedings might be stopped, 
and if not stopped, that his letter might be considered as a 
renunciation of all connection with the Episcopal Church. 
That renunciation was not accepted or recognized by the 
Bibhop. • The Standing Committee resolved, that considering 
such unrecognized renunciation made to escape investigation, 
as utterly invalid, the He v. Mr. Dashiell be informed that the 
trial must proceed. He failed to appear, and was deposed. 

In the year 1828, the following proceeding took place in 
Connecticut. The Rev. Mr. M. Raynor was presented " for 
being in the habit of countenancing and disseminating opin- 
ions which are contrary to the doctrines of the Protestant Epis- 
copal Church in the United States, for being in the habit of 
public preaching without using the liturgy, and that his con- 
duct had been unbecoming the Character of a christian minis- 
ter." 



348 RELINQUISHMENT 

The Standing Committe being informed by the Bishop 
that Mr. Raynor would immediately make the declaration re- 
quired by the 7th canon of 1820, to enable the Bishop to sus- 
pend him from the ministry without a trial, proceedings on 
the charge were postponed. 

At a subsequent meeting, information was received from 
the Bishop that the Rev. Mr. Menzies had been suspended. 

And it appears from the address of Bishop Brownell that 
Mr. Menzies had relinquished the ministry and connected him- 
self with another religious communion. He had communica- 
ted " the relinquishment of his official standing as an Episco- 
pal Clergyman in the Diocese," that " I might record the 
ame," and also " take such other measures as in my judg- 
ment the canon might require." (Journal Conn. 1828.) 

Now in 1829, at the meeting of the General Convention 
first ensuing this act, the clause as to the existence of an ec- 
clesiastical proceeding was adopted. 

The case of the Rev. Dr. Forbes in New- York, in 1849- 
50, caused so much consideration and discussion of this por- 
tion of the canon, that a full statement of it, will, it is thought, 
aid the judgment upon its meaning. 

The facts were these : On the 21st of November, 1849, a 
letter was addressed by Dr. Forbes to the president of the 
Standing Committee, as follows. This was not according to 
the letter of the canon. The president was informally advised 
by one or two members to pursue the same course as had 
been taken in the case of Mr. Shimeall, 1 and endeavor to ob- 
tain a communication strictly in its terms. The attempt 

1 In the case of Mr. Shimeall, the letter of relinquishment was 
couched in language quite as explicit as that of Dr. Forbes. The 
Standing Committee was about acting upon it as sufficient, when re- 
ference was made to the case of Mr. Harison, as reported by Dr. Hawks. 
The letter of Mr. Shimeall was, " that from that date he withdrew 
from all further connection with the Protestant Episcopal Church as a 
presbyter thereof, and proposed to ratify such act by participating in 



OF THE MINISTRY. 349 

was made, and a reply procured, still not containing the very 
language. In this position, and on the 27th of December, 
1849, a presentment, dated that day, was handed to the 
Standing Committee, and that presentment was, as defined 
by the presenters in a subsequent paper, " for schism and 
non-conformity to the worship and discipline of the Protestant 
Episcopal Church of the United States." 

On the same 27th of December, a sub-committee was ap- 
pointed to consider and report upon the whole subject, and 
advise the course of action. On the 28th of December, a 
member of that committee having had some communication 
with Dr. Forbes, received a message from him, and thereupon 
addressed an inquiry in writing to him, whether he understood 
that message aright ; viz : that " he (Dr. Forbes) intended in 
his letter to the President to declare his renunciation of the 
ministry of the Protestant Episcopal Church, and his design 
no longer to officiate in any of the offices thereof." To this an 
answer in the affirmative was made in writing, and subscribed 
by him. 

On the 8th day of January, 1850, the Standing Committee 
ordered the declaration to be recorded, reciting these commu- 
nications. A remonstrance was addressed by the Rev. Pre- 
senters asking for a reversal of this action, and a copy was 
laid before the Right Rev. Bishop Chase of New Hampshire. 

the holy Communion next Sunday, in the Presbyterian Church, of 
which the Rev. Dr. Phillips is pastor." The Committee requested the 
President to communicate to Mr. Shimeall their view of the propriety 
of a more explicit letter. This was done, and a further letter was re- 
ceived couched in the very words of the canon. 

The letter of Dr. Forbes was as follows : " You may conceive that it 
is with no ordinary emotion that I feel myself constrained to declare to 
you as President of the Standing Committee, that it is my intention no 
longer to exercise the ministry of the Protestant Episcopal Church, it 
having become my conscientious conviction that duty to God requires 
me to unite myself to the one holy catholic and apostolic Church, in 
communion with the See of Rome." 
23 



350 RELINQUISHMENT 

The Committee did not change their decision, and the sentence 
was pronounced by the Bishop on the 26th day of February, 
1850. 

In coming to this determination, it was assumed by some 
of the members, and not controverted by any, that apart from 
the presentment, the two communications brought the case 
within the very terms of the canon, even in the judgment of 
the one who most strictly required a scrupulous conformity. 
And it is confidently submitted, that had there been no present- 
ment, this position could not admit of cavil. 

Next, it is indisputable, that the period contemplated at 
which the ecclesiastical proceeding has been instituted, is the 
time of the declaration by the minister. It is not the time of 
the record, nor of course that of pronouncing the sentence. 
By way of example, if a perfect renunciation was written, 
and transmitted to the President, but from absence or acci- 
dent, was not laid before the Committee at the time when a 
presentment of subsequent date was received, and even acted 
upon, action would be superseded by the renunciation when 
subsequently communicated. 

And this is defensible upon two grounds. In the first 
place it seems to be the intention of the Church to give a 
right to the minister, complying with the prescriptions of the 
canon, to bring her condemnation upon himself in this man- 
ner, and to be shielded from a public trial and exposure of 
his weakness or his crimes. 

And in the next place, if this were doubtful, yet when 
there was in existence a renunciation sufficient to a common 
intent before presentment, and made sufficient to the letter 
afterwards, not induced by the fear of it, there must be a dis- 
cretionary power in the ecclesiastical authority to say, that 
the fallen member might in this mode be cut off, and the sen- 
tence in this mode reached. 

Upon such views, as well as others which influenced them, 



OF THE MINISTRY. 3 51 

the course of the majority of the members of the Standing 
Committee was clear. They had held that the original letter 
was sufficient, but upon reasons of prudence and expedience, 
that it was best to seek for a more literal declaration. 

The Committee had not rejected that letter. It remained 
before it, and was open for its action. And when the present- 
ment was considered, and the questions, delay, and agitation, 
it would produce were weighed, they held that a higher expe- 
diency, in the secured peace of the Church, overruled the 
expediency which had induced their former course, and war- 
ranted their resorting to the first letter as containing at its 
date a sufficient relinquishment. They proceeded upon the 
ground that they and the committee had never gone further, 
than to seek for more than the first letter contained, and had 
never pronounced it insufficient, nor deprived themselves of 
the power to act upon it. 

The author of the present work differed in one particular 
from his associates, and as he was alone in the opinion, he 
feels how improbable it is, that he should be right. But he 
cannot refrain from stating the point. 

In his judgment, the letter of renunciation must be in the 
identical words of the canon. It is to be followed by the 
highest penalty known to the Church, the irremissible and 
final excision from her orders. The analogy of criminal law, 
though by no means to be followed in all its technical nicety, 
furnished a valuable and safe principle of guidance. It is 
settled that where an offence is created by statute, it is not 
enough to lay the indictment in equivalent terms, or words 
sufficient to a common understanding. The ipsissima verba 
must be employed. If a presentment had been framed under 
this canon, it would have been necessary to have employed 
its very language ; and the evidence must have been co- 
extensive with the allegations. Now here the letter of re- 
nunciation under this canon was to supply the place of 



352 RELINQUISHMENT 

presentment and proof. It ought to be as full and as direct, 
as they must be. 

If this view may sometimes be attended with incon- 
venience, the remedy is under the second section of the 37th 
canon of 1832. 

But the author was equally clear as his associates, in the 
right and duty of the Standing Committee to proceed under 
this canon, and for these reasons. The last communication of 
Dr. Forbes was not a new renunciation- — it was not even a 
statement, that he now wished his previous letter to be in- 
terpreted as an entire compliance with the canon. It was a 
full, positive, unequivocal exposition and declaration of what 
that first letter did mean, and was intended to mean, and to 
be. It expressly announced, that in using the language he 
then used, he did intend " to declare his renunciation of the 
ministry, and his design not to officiate in future in any of 
the offices thereof." This was done, when, as the sub- 
committee was satisfied, he was ignorant of the presentment, 
made the day before. The last communication could justly be 
treated as relating back to the former, as forming part and 
parcel of it, and could upon sound principles justify the con- 
sidering the date of the first as being the date of the whole. 

The last clause of the canon is, that in the case 
Clause as to °^ a P erson making the declaration for causes not 
mokal stand- affecting his moral standing, the same shall be 

ING - declared. 

From the context, it would seem as if it were only necessa- 
ry to insert the clause in the notice. And as in the diocese in 
which the case occurs, the record shows the ground on which 
the sentence proceeds, this is probably all that is requisite. 
In the cases in the diocese of New- York in 1849, 1850, of a 
relinquishment in order to join, in the one case the Presbyterian, 
and in the other the Romish Church, not involving immorality 
in its popular sense, the clause was omitted. In the case of 



OF THE MINISTRY. 353 

the Rev. Mr. Huntingdon in 1850, in a case of the same cha- 
racter, the notice given by the Bishop of South Carolina did not 
contain it. 

Dr. Hawks, in his comments upon the 39th Canon, ques- 
tions the wisdom of the rule of the Church, in rendering a res- 
toration to office impossible in every case after a sentence of 
degradation, and applies his objections particularly to the case 
of a minister imbibing and preaching false and erroneous doc- 
trines. And by the 31st canon of the Church of Scotland, 
(1838) when any clergyman shall disobey any of the canons, 
he shall, after the first and second admonition by the proper 
judge be rejected, and publicly declared to be no longer a cler- 
gyman of the Episcopal Church in Scotland. But afterwards, 
on giving sufficient evidence of a sincere repentance, he may 
be restored to his former station by the sentence of a majority 
of the Bishops. 



The discussions of the cases in New York in 1849, 1850, 
gave rise to the inquiry how those who had been degraded 
from their offices as ministers of the Church stood in relation 
to communion with it, and the expression of an opinion by 
several, that some regulation was expedient. About the same 
period, the same subject was undergoing great consideration 
in England. The case of the Rev. Mr. Shore led to a bill cal- 
led the Clergy Relief Bill, brought in first in 1848 ; again 
with material changes in March 1849 ; and as amended by a 
select committee, in April of that year. That committee, com- 
posed of members of very different views, at last agreed upon 
the following provisions : the party was to sign a certificate 
declaring that he was a Protestant and a Dissenter from the 
United Church of England and Ireland ; that this should be 
transmitted to the Bishop, who within thirty days after its re- 
ceipt, should record the same in his registry, and should further 
record in his registry sentence of deprivation of such person of 



354 RELINQUISHMENT 

all preferment he may hold within the diocese, "and also sen- 
tence of deposition of such person from holy orders. 

These sentences were to have the like effect to all intents 
and purposes as if they had been pronounced by an Ecclesias- 
tical Court having jurisdiction. 

Another provision was added that " no clergyman shall be 
prosecuted, or proceeded against, punished or held liable for 
damages in any court or otherwise, for refusing to administer 
any rite or sacrament of the said United Church to or in res- 
pect of any such person." 

Mr. Bouverie, the author of the measure, and some others 
of the committee retracted their consent, and ultimately oppo- 
sed the bill. 

It was repugnant to the opinions of two opposite parties. 
One body of Churchmen thought it did not go far enough; 
that it ought to recognize and provide for the exercise of the 
right of the Church to pronounce sentence of excommunica- 
tion upon the seceders, in conformity with the spirit of several 
of her canons directed against sehism and schismatics. An- 
other party opposed the proviso clause, exempting any clergy- 
man from punishment who should refuse to administer any 
of the offices of the Church to such a seceder. It is urged 
with irresistible strength of reasoning, in an article in the 
London Quarterly Review, (January, 1850,) that under such 
a doctrine, the dissent which is recognized by the law has no 
limit of belief— its only condition being that it differs from 
the belief of the Church of England ; and as the persons so 
dissenting shall not lose their title to exact from the clergy, 
under civil penalties, the administration of the rites, or of 
certain of the rites of the Church, consequently religious be- 
lief is to be no condition of membership in the Church, or of 
its spiritual privileges. In this legislation is involved the 
four-fold principle, of tyranny towards the clergy, of ecclesi- 



OF THE MINISTRY. 355 

astical anarchy, of absolute religious indifference, and of pub- 
lic demoralization." 

"With equal force does this writer vindicate the right of the 
Church to exclude from her fold one who has abandoned her 
service. " To allow that the one clergyman who refuses the 
administration of her rites to such a person, shall be exempt 
from punishment — and another, of different views, may ad- 
minister them, is a violation of her discipline, is grossly un- 
just to her integrity, and pregnant with evil." 

Yet the Churchmen of England would have accepted the 
bill as reported by the committee, in spite of that anomalous 
and exceptionable clause. The opposition to it is the most 
extraordinary of all those late assaults which have struck 
alarm into the heart of the Church of England. To refuse 
her the power, which every denomination of Christians in the 
kingdom, nay, every petty association for any business object, 
possesses and exercises, of driving utterly from her bosom her 
erring members, is the merest wantonness of intolerance. It 
is a startling proof of that untameable ferocity with which her 
enemies pursue her. 

The position of the law in our own Church is not free 
from embarrassment. Fortunately, the question is not en- 
tangled with any connection with the law of the state. Yet 
this delicate case may occur. A clergyman possesses 
the right to demand the administration of the commu- 
nion. That right is not effaced by a sentence of degrada- 
tion. He is yet in lay communion. Unless, therefore, his 
ease is brought within the rubric admitting of repulsion, it 
will be difficult to say that he can be lawfully excluded ; and 
if the sentence has proceeded upon the ground of a renuncia- 
tion, for example, for causes not affecting moral character, 
under the rubric, great doubt would exist whether the repul- 
sion would be justifiable. 

One mode of meeting this difficulty is suggested — that 



356 MINISTER ABSENTING HIMSELF 

the Bishop may, when a clergyman is suspended or degraded, 
pronounce also a sentence of separation from the communion 
of the Church, provided, that that part of the sentence, in 
case of degradation, be remissible by a majority of the Bishops 
of the Church, when assembled as- a House of Bishops, or 
otherwise, under any canon. 

The author makes this a suggestion merely, well aware 
with how much caution legislation should proceed on such a 
subject, 



TITLE IV. 

OF A MINISTER ABSENTING HIMSELF FROM HIS DIOCESE. 

[Canon II. General Convention, 1841.] 

" When a clergyman has been absent from his diocese 
during two years, without reasons satisfactory to the Bishop 
thereof, he shall be required by the Bishop to declare in writ- 
ing the cause or eauses of his absence, and if he refuse to give 
his reasons, or if these are deemed insufficient, the Bishop 
may, with the advice and consent of the clerical members of 
the Standing Committee, suspend him from the ministry, 
which suspension shall continue until he shall give in writing 
sufficient reasons for his absence,, or until he shall renew his 
residence in the diocese, or until he shall renounce the min- 
istry according to Canon 38 of 1832." 

In the case of such suspension as is above provided for, 
" it shall be the duty of the Bishop to give notice thereof to 
every Bishop of his Church, and to the Standing Committee 
of every diocese wherein there is no Bishop." 



There was no previous canon upon this subject. 

It contemplates, though it is not confined to, a case of ab- 
sence at the time when the reasons are required ; and the 
Bishop is then to make the requisition. Care must therefore 



FROM HIS DIOCESE. 357 

be taken that the requisition be brought home to the party, 
and sufficient proof of this must be made. This may some- 
times be very inconvenient, or impracticable. It may be 
suggested whether two years absence, without reasons given 
by the party himself, should not be sufficient to ground the 
suspension. It is always in his power to communicate with 
the Bishop. 

The sentence of suspension ought to specify the conditions 
upon which it will terminate. (See Canon 3 o/1847.) 

There ought to be, as I apprehend, a formal declarative 
record by the ecclesiastical authority of the termination of 
the sentence, and probably this authority should be the same 
which pronounced the sentence, viz,, the Bishop with the ad- 
vice and consent of the clerical members of the Standing 
Committee. 

This is the rule in England in cases of excommunication. 
Under a former system, when a sentence was pronounced, 
and a party imprisoned under the writ de excommunicato ca- 
piendo, he was absolved and released by a writ de excommu- 
nicato deliberando. This issued upon a certificate of the 
Bishop. (G-ibson's Codex, 1102.) Under the statute 53 G-eo. 
III., cap. 127, the writ de contumace capiendo is substituted, 
and a writ of deliverance issues, upon satisfaction being 
made. (Burns by Thill. , vol. 3, p. 211, et seq.) In Floyer's 
Proctor's Pract., p. 156, is the form of a decree of absolution 
from a sentence of excommunication. 

Again, it is almost an invariable rule that, even in cases 
in which a party is declared excommunicate or suspended 
ipso facto, a judicial declaration and promulgation is neces- 
sary. Bishop G-ibson does not entirely admit this, but the 
late case of Titmarsh vs. Chapman (3 Curteis' Rep., 618) 
appears to establish it conclusively. The Bishop admits it 
to be rule at common law. 

The Institutions of the Church, collected by Johnston, are 



358 REMOVAL FROM ONE 

full of cases in which the penalty of excommunication or 
suspension is pronounced to be incurred ipso facto, yet a ju- 
dicial sentence is essential ; and what has in this formal man- 
ner been adjudged, should in the like manner be discharged. 

So in a Constitution of Othobon it was directed : Statui- 
mus ut cum aliquem Excommunicationis, Suspensionis, vel 
Interdicti sententia contingerit relaxari, mandetur alicui, ut 
relaxationem hujusmodi publice nunciet locis et temporibus 
opportunis. (De Publ. Absol.) 

Athon adds," Ubi fuit publicatus Excommunicato, &fc" 



TITLE V. 

OF THE REMOVAL OF A MINISTER FROM ONE TO ANOTHER 
DIOCESE, &C. 

[Canon Y. of General Convention, 1844.] 

" § 1. No minister removing from one diocese to another, 
or coming from any other state or territory, which may not 
have acceded to the Constitution of this Church, shall be re- 
ceived as a stated officiating minister by any parish of this 
Church, until he shall have presented to the vestry thereof a 
certificate from the ecclesiastical authority of the diocese to 
which said parish belongs, approving him as a clergyman in 
regular standing. And in order to obtain such certificate, 
every minister desirous to change his canonical residence, 
shall lay before the ecclesiastical authority of the diocese in 
which he designs to reside, a testimonial from the ecclesiasti- 
cal authority of the diocese in which he has last resided, in the 
following form, viz : 

" ' I hereby certify that A. B., who has signified to me his 
desire to be transferred to the diocese of , is a presby- 
ter (or deacon) of this diocese, in regular standing, and has 
not, as far as I know or believe, been justly liable to evil report 



TO ANOTHER DIOCESE. 359 



for error in religion or viciousness of life, during the three 
years last past.' 

" When the ecclesiastical authority thinks proper, further 
statements may be added to the above letter. But in case 
the minister desiring to be transferred has been subjected to 
inquiry or presentment, on any charge or charges of miscon- 
duct, thereby rendering the terms of the aforesaid testimonial 
inadmissible, he may nevertheless be transferred if the charges 
have been withdrawn with the approbation of the ecclesiastical 
authority, or if he have been acquitted on trial, or if he have 
been censured or suspended, and the sentence has had its 
course, so that he has been restored to the regular discharge of 
his official duties. And in all such cases, the ecclesiastical 
authority of the diocese concerned, shall instead of the fore- 
going testimonial, certify to a statement of the facts, with as 
much detail as may be necessary to inform the ecclesiastical 
authority to which he desires to be transferred, of the true 
standing of the party. 

" § 3. No clergyman canonically under the jurisdiction of 
any diocese of this Church, shall be considered as having passed 
from under such jurisdiction to that of any foreign Bishop, or 
in any way ceased to be amenable to the laws of this Church, 
until he shall have taken from the Bishop with whose diocese 
he was last connected in this Church, or from the standing 
committee of such diocese, if it have no Bishop, the letter pro- 
vided for in section 1 of this canon, and until the same shall 
have been accepted by some other Bishop, either of this 
or some other Church. 

" § 4. The ecclesiastical authority in all cases under this 
canon, is to be understood to refer to the Bishop, or in case 
there be no Bishop, to the majority of the clerical members of 
the standing committee, duly convened. And if the clergy- 
man desiring to be received come from a state or territory, 
not in connection with this Church, and having no convention, 



360 REMOVAL FROM ONE 

then the above testimonial or statement shall be signed by at 
least three presbyters of this Church. Nor shall any minister 
so removing be acknowledged by any Bishop or convention as 
a member of the Church to which he removes, until he shall 
have produced the aforesaid testimonial or statement. 

" § 5. The above testimonial or letter of dismisson, shall 
not affect the canonical residence of the minister receiving it, 
until he shall be received into some other diocese by the 
Bishop or ecclesiastical authority thereof. And if the clergy- 
man to whom the letters of dismission are given shall not pre- 
sent them to the Bishop or ecclesiastical authority to whom 
they are directed, within three months from the date thereof, 
if designed for the United States, and within six months from 
the date thereof, if designed for the Church in a foreign coun- 
try, the letters may be considered null and void by the said 
Bishop or ecclesiastical authority, and shall be null and void 
if not presented as above in six months after date if intended 
for this country, and in twelve months after date if intended 
for a foreign country." 

The first canon on this subject was the 3d of 1804, the 
next the 31st of 1808 ; then the 4th of 1829, the 35th of 1832,' 
the 4th of 1835, and the 7th of 1841. 

Dr. Hawks, (Cons, and Canons 32, &c.) has pointed out 
the various defects in the canons prior to that of 1835, and 
the successive amendments adopted to remove them. The 
first two sections of that of 1835 correspond precisely with the 
first two of the present law. The third section was the same 
as the present fourth. The present section 3 was not in that 
canon. The present 5th section embraces section 4, and the 
last clause of the fifth section, with this difference. By the for- 
mer provision, if the letters of dismission were not presented 
within three months after the party had taken up his abode in 
the diocese to which he had removed, the letters were de- 
clared absolutely null and void. It will be seen that the reg- 



TO ANOTHER DIOCESE. 361 

ulations of the present canon in this respect are much more 
practical and definite. 

It is to be noticed that strictly letters dimssory was a 
term applied only to the instrument by which one Bishop 
sanctions the ordination of a deacon or priest by another Bish- 
op. 1 By the general canon law, if a Bishop ordained a priest 
without such letters, his punishment was a sentence of suspen- 
sion for one year. This was the rule established at the Coun- 
cil of Lyons in 1271. But in England, by the Constitution of 
Peckham (1230) the punishment was a suspension from con- 
ferring the same order until he made sufficient satisfaction. 
This was the law, as I gather, until the canon of 1603, (the 
34th) by which the Bishop ordaining without such letters, was 
to be suspended from making either deacons or priests for two 
years. This prohibition extended to ordaining an inhabitant of 
another diocese to be a deacon, as well as ordaining a deacon 
to be a priest. 2 

But the letters commendatory {liters commendatitice,) of 
the canon law, more closely resemble our letters of dismission. 
They are mentioned in the provincial constitutions of Walter, 
and of Thomas Arundel. 3 

In the latter, "it is provided that no one not born or or- 
dained in the province should be admitted to officiate, unless 
he brought with him his letters of orders, and letters com- 
mendatory of his diocesan." 4 

1 Lynwood thus defines the meaning; Dicuntur dimissorice quia per 
cos Episcopus dimittit subditum suum et licentiat ut alibi posset promoveri, 
et quod alius Episcopus possit cum ordinare. 

2 All this appears in the Codex, vol. 1, p. 163, 164. 

1 See these constitutions at the end of the edition of Lynwood and 
John of Athon, printed at Oxford, 1679. 

!" 4 It may be noticed, however, that Lynwood quotes a canon of Inno- 
cent, to the following effect: Literce Dimissorice, Ha?c dicuntur per 
quas aliquis dimittitur a jurisdictione, seu potestate sui praclati." 
(Lib. 1, Tit. 9, De Pereg. Clericis.) 



362 REMOVAL, ETC. 

It is stated by Bingham, (Book 2, cap. 4, § 5,) that ac- 
cording to the rules and practice of the ancient Church, no 
Christian could travel without taking letters of credence with 
him from his own Bishop, if he meant to communicate with 
the Church in a foreign country. These letters were of seve- 
ral kinds, according to the different occasions or quality of 
the persons who carried them. They are generally reduced to 
three kinds — commendatory, communicatory, and dismissory. 
The first were such as were granted only to persons of quali- 
ty, or to persons whose reputation had been called in question, 
or to the clergy who had occasion to travel into foreign coun- 
tries. The second sort were granted to all who were in the 
peace and communion of the Church, whence they were also 
called pacifical, and ecclesiastical, and sometimes canonical. 
The third sort were given only to the clergy when they were 
removing from one Church to settle in another, and they 
were to testify that the bearers had their Bishop's leave to de- 
part, whence they were called dimissory, and sometimes also 
pacifical. All these went under the general name of formed 
letters, because they were written in a particular form, with 
some particular marks and characters which served as special 
signatures to distinguish them from counterfeits. Respecting 
all of them it it to be observed, that it was the Bishop's pre- 
rogative to grant them, and no other person might presume to 
do so, at least without his authority and permission." 

In some of the dioceses, a communicant changing his resi- 
dence, and thus dissolving his connection with a parish, shall 
be required to present a certificate of good standing from the 
minister of such parish, or if there be no minister, from one 
of its wardens, before being enrolled as a communicant of any 
other parish. [Canon 15 of Ohio.) 



CLERGYMEN OFFENDING, ETC. 363 

TITLE VI. 
OF A CLERGYMAN OF ANY DIOCESE CHARGEABLE WITH MISDEMEANOR 
IN ANY OTHER. 

[Canon XL. of General Convention, 1832.] 
" § 1. If a clergyman of the Church in any diocese within 
this Union, shall in any other diocese conduct himself in such 
a way as is contrary to the rules of the Church and disgrace- 
ful to his office, the Bishop, or if there be no Bishop, the 
Standing Committee, shall give notice thereof to the ecclesi- 
astical authority of the diocese to which such offender belongs, 
exhibiting, with the information given, the proof of the charges 
made against him. 

" k 2. If a clergyman shall come temporarily into any 
diocese under the imputation of having elsewhere been guilty 
of any crime or misdemeanor, by violation of the canons or 
otherwise, or if any clergyman, while sojourning in any dio- 
cese, shall misbehave in any of these respects, the Bishop, 
upon probable cause, may admonish such clergyman and for- 
bid him to officiate in such diocese; and if after such prohi- 
bition the said clergyman so officiate, the Bishop shall give 
notice to all the clergy and congregations in said diocese, that 
the officiating of such clergyman is, under any and all cir- 
cumstances, prohibited ; and like notice shall be given to the 
Bishop, or if there be no Bishop, to the Standing Committee 
of the diocese to which the said clergyman belongs; and such 
prohibition shall continue in force until the Bishop of the first 
named diocese be satisfied of the innocence of the said clergy- 
man, or until he be acquitted on trial." 



The former canons were the 2d of 1792 and the 28th of 
1808. 

They were the same as the first section of the present ca- 
nons, introducing the word district as well as diocese. 

The continued superintendance of a Bishop over a clergy- 



364 CLERGYMEN OFFENDING, ETC. 

man, although out of his diocese, is recognized in old and 
modern canons. A Bishop was prohibited from receiving a 
minister from another diocese without permission. By the 
16th of the apostolical canons, if he did not receive him, he 
was to be excommunicated as a teacher of disorder. 

Dr. Hawks (p. 355) observes, that a case may arise not 
free from difficulty, where a clergyman, a mere visitor in a 
diocese, violates some canon of that diocese, there being no 
such canon in his own, and where a penalty is annexed to the 
violation of the canon in the diocese in which he offends. He 
concludes that such a clergyman is bound to know the canons 
of the diocese in which he resides, that the offence should be 
punished by his own Bishop, but whether by the infliction 
prescribed in the diocese in which the offence is committed or 
not, should be in the latter Bishop's discretion. 

I presume that the phrase " proofs," in this section, means 
only the statements or documents, or voluntary affidavits, 
which may have been laid before the Bishop. No judicial in- 
quiry could be instituted by him. 

There was a case decided in the Court of Delegates in 
Ireland, in 1838, which bears upon this subject. (The Office 
of the Judge, &c, vs. Nixon, 1 Milward's Rep., 390, n.) 
Nixon, rector of one parish, went into another, and as a cler- 
gyman belonging to a society called " The Home Mission," 
read some prayers, sung a hymn, and preached in the market 
house. He had been previously warned not to do so by the 
rector. He was cited before the Archbishop of Armagh, the 
diocese in which the act was committed, for having preached 
in a private house without permission of the diocesan or vicar. 
An exception to the jurisdiction was taken, because the party 
was not, at the time of issuing the citation, or for three months 
previous, a resident of that diocese. 

The court referred to the 21st, 38th and 39th canons of 
the Irish Church, and held that the offence was in the nature 



OFFICIATING IN OTHER CURES. 365 

of a contempt or violation of the authority of the Bish<>p of 
the diocese in which the offence had been committed, and 
was consequently local, and subject to the jurisdiction of that 
diocese only. 

That the general rule of the ecclesiastical law was. un- 
doubtedly, that the dwelling place of the accused is the forum 
to which he is to be cited. But there were exception v. hioh 
took the case out of the general rule that forum seqruitu 
reum, and gave locality of jurisdiction from the place of 
delictum. That Lynwood supported this view, De Jitd., 
Lib. 2, Tit. 1. 

The citation in such cases is served with the aid and con- 
sent of the jurisdiction where the offender resides. 

We see that the principle of this case, is so far adopted in 
the second section of our canon as to admit of an admonition 
by the Bishop of the diocese where the offence is committed, 
and a prohibition from officiating within it. 



TITLE VII 

OF MINISTERS OFFICIATING IN THE CURES OF OTHER CLERGYMEN- 

[Canon XXXI. General Convention, 1832.] 
" § 1. l\ T o clergyman belonging to this Church shall offi- 
ciate either by reading, praying, preaching, or otherwise, in 
the parish or within the parochial cure of another clergyman, 
unless he has received express permission for that purpose 
from the minister of the parish, or cure, or, in his absence, 
from the churchwardens, and vestrymen, or trustees, of the 
congregation. 

" § 2. When parish boundaries are not defined by law or 
otherwise, each city, borough, village, town, or township, in 
which there is one Protestant Episcopal Church or congrega- 
tion, or more than one such church or congregation, shall be 
held for all the purposes of this canon, to be the parish or 
24 



366 OFFICIATING IN THE CURES 

parishes of the Protestant Episcopal clergyman or clergymen 
having charge of said church or churches, congregation or 
congregations. 

" § 3. But if any minister of a church, shall from inability 
or any other cause, neglect to perform the regular services to 
his congregation, and refuse without good cause his consent 
to any other minister of the Church to officiate within his 
cure, the churchwardens, vestrymen, or trustees of such con- 
gregation, shall on proof of such neglect and refusal before the 
Bishop of the diocese, or if there be no Bishop, before the 
standing committee, or before such persons as may be deputed 
by him or them, or before such persons as may be by the regu- 
lations of this Church in any diocese vested with the power of 
hearing and deciding on complaints against clergymen, have 
power to open the doors of their church to any regular minis- 
ter of the Protestant Episcopal Church. 

" § 4. In case of such a vicinity of two or more churches, 
as that there can be no local boundaries drawn between their 
respective cures or parishes, no minister of the Church other 
than the parochial clergy of the said cures, shall preach within 
the common limits of the same, in any other than in one of 
the churches thereof, without the consent of the major number 
of the parocbial^clergy of the said churches." 



The first canon on'this subject was the sixth of 1792. It 
was precisely'in the language of the first clause of the present 
canon, marked § 1, and it gave the unqualified power to a 
minister of a parish to exclude the services of any other, and 
did not provide for the case of his inability to officiate, and 
refusal to permit another to do so. 

The 5th canon of 1795, made provision for such a case in 
the language of the present canon, retaining the first clause, 
and adding what I have marked § 3, 



OF OTHER CLERGYMEN. 367 

In the seventh canon of 1795, the clause of the present, 
which I have marked § 4, was adopted. 

The 33d of 1808 embodied all the previous regulations 
into one enactment. In 1829, the clause was adopted which 
I have marked as the second section of the present canon. 
The reason for the passage of this section is thus stated by 
Dr. Hawks. 1 A clergyman of another state had accepted an 
agency of the American Sunday School Union, and addressed 
the scholars in a Presbyterian Church, near the only Episco- 
pal Church in the place, contrary to the remonstrance of the 
rector, who was answered, that it was intended to address 
Presbyterians and Congregationalists, who were not within 
his parochial cure. 

It may perhaps be questioned, whether such an address to 
persons of other denominations, or scholars, is even now within 
the canon. 

In 1832, the canon was passed as it now stands, with all 
the preceding provisions embodied in it. 

In 1844 a resolution was offered to amend this canon by 
inserting, after the word congregation in the first paragraph, 
(marked § 1,) the following : " Provided always, that 
said restriction do not extend to the organization of new 
parishes within the limits of another, nor to the officiating 
of clergymen in said parish when duly invited by the author- 
ities thereof." {Journal 1844, p. 37.) The Committee on 
Canons reported that it was inexpedient to adopt it, inasmuch 
as the object of the proposed amendment was sufficiently pro- 
vided for in the canon as it now stands, (Ibid. p. 41.) 

The Committee on Canons reported in the year 1847 an 
amended thirty-first canon, which contained the following 
clause : — No new congregation or parish shall be organized 
within the limits of an existing parish or parishes as defined 
in section 1, without the previous consent of the minister or 

1 Constit. and Canons, p. 291. 



368 OFFICIATING IN THE CURES 

ministers of such parish or parishes, unless the same shall have 
been permitted by the Diocesan Convention, or in its recess 
by the Standing Committee. 

This subject of intrusion is one of great delicacy, and no 
little difficulty. It is to be observed, that the defining of 
boundaries by law which the canon mentions, is the law of 
the state ; and it was before shown that except in some South- 
ern Dioceses, the limits of a parish, as such, are rarely so de- 
fined. 

But when there is no such law defining the boundaries, 
then the canon provides that the limits of a village, city or 
town are to designate them. If there is but one church in a 
city or town, the case is plain. The parish is commensurate 
with the town or city ; the clergyman of the single church 
is the minister of the parish. But if there are two or more 
churches in the town or city, with ministers in each, then 
such town or city shall be held to be the parishes of such min- 
isters for the purposes of the canon. As I understand it, this 
means, that the city, &c, comprises as many parishes as there 
are congregations or churches with ministers in charge of 
them within its limits ; and that each of such ministers has a 
parish within such city. 

To a certain extent this furnishes a definite rule. Thus 
the church edifice and precincts, such as the burial ground, are 
exclusively within the parochial cure of the rector, for the 
purposes of this canon. Every service therefore performed with- 
in these limits, may be performed by another with his consent, 
and may not be performed without it. 

But as iO services, such as baptisms and marriages, per- 
formed beyond the precincts of the church, the meaning of 
the phrase must be extended to embrace them. By treating 
the term church or congregation, (which prima facie is used 
collectively,) as comprising the members of the church or con- 
gregation — those who have legally united themselves with 



OF OTHER CLERGYMEN. 369 

it, the object of the canon will be obtained, and I think its 
true meaning reached. The marriage or baptism of any 
members of the Church or their children in private places, 
without the clergyman's consent, is equally forbidden, and a 
matter of discipline. If this view is not correct, then either 
the consent of all the ministers in a city or town is required 
for such private service, or any clergyman is at liberty to 
perform them without any con-sent. 1 

By the last clause of our canon, the consent of a majority 
of the parochial clergy is also made necessary, a requisition 
extremely inconvenient in large cities with many churches. A 
practice has therefore grown up of getting the consent of the 
rectors in the vicinity, which may be the only practical expo- 
sition, but is not defensible under the canon. Upon the lat- 
ter part of this section of the canon Dr. Hawks remarks : "A 
question arises under the last sentence of this canon not with- 
out interest. It concerns the erection of new churches in our 
large cities and towns. The usual mode pursued is (and 
such is the regular and canonical course) for the clersrman 
who desires to raise a new congregation to apply for the as- 
sent of such of his brethren as may have churches near the 
scene of his intended operations. Although a body of laymen 
may erect an edifice, yet no minister would have a right to 
officiate in it without the consent of the major number of the 
parochial clergy who have charge of the churches and cures 
already existing." 

This statement of the learned annotator shows, I think, 

1 There is a provision in the canon law applicable to such a case. 
Van Espen, after quoting a canon of the Council of Trent, says, 
l '- Whoever will consider the view and intention of the council in these 
words expressed, will readily understand that the decree of the council 
is fulfilled wherever parishes have not fixed bounds, but have certain 
people and certain families, that the Sacraments be not promiscuously 
administered, but the priests recognize their own people." {Jur. Ecc. 
Un. : Pars. 1, Tit. 3 ) 



370 OFFICIATING IN THE CURES 

the necessity of some legislation upon this matter. Here is a 
requisition for the consent of a majority, and a practice to take 
that of a few in the vicinity. 



Having stated the progress of our legislation on this sub- 
ject, with the proposed amendments, I proceed to a considera- 
tion of various questions which arise under the canon. The 
1st. 2d and 4th clauses, as I have marked them, should be 
considered in connection. 

There is no part of the law of the Church which has occa- 
sioned the author more perplexity ; none more calculated to 
excite strong personal feelings, and none which requires a 
more thorough interposition of the Greneral Convention. 

An important case came before the Standing Committee 
in 1849 and 1850, which led to great discussion of the canon, 
and no little warmth of controversy. Happily, by the counsel 
of friends, the matter was amicably settled. The case had 
been anxiously examined by a sub- committee, 1 whose conclu- 
sions upon several points of general interest it may be useful 
to state. 

The material facts were these : 

By a charter of Queen Ann, the whole of Staten Island 
was created into the Parish of St. Andrew's, the parish church 
being at Richmond. By a colonial act, re-adopted in 1784, 
again in 1813 and in 1830, the island w as divided into various 
towns, with specified boundaries, of which Castleton was one. 

Prior to 1832, the parish church of St. Andrew's was the 
only church on the island. This was in the town of Rich- 
mond. But there had been erected a chapel of ease at Factory- 
ville, in the town of Castleton, at which the rector of St. An- 
drew's occasionally officiated. 

In this state of things, and in the year 1833, a new 
church was organized and incorporated. Its incorporate title 

1 Ptev. Dr. Seabury, Chief Justice Jones, and the Author. 



OF OTHER CLERGYMEN. 371 

and name adopted in the act was, " The Rector, Church- 
wardens and Vestrymen of St. Paul's Church in the Town of 
Castleton." By this name it was reported upon favorably by 
a committee of the convention, and by this name it was ad- 
mitted into union in 1834, and delegates from it were re- 
ceived. 

In the year 1849, a new church was organized in what 
was termed New Brighton, in the town of Castleton. The 
Rector of St. Andrew's attended at the preliminary meetings, 
and aided in the incorporation. 

The Rector of St. Paul's Church, on a written application 
for his assent, convened his vestry, and with their approba- 
tion declined granting it, and remonstrated against it. Upon 
its being incorporated, the new church applied for the sanction 
of the Standing Committee for admission into union. The 
rector of St. Paul's Church remonstrated against it, and the 
subject was sent to a sub-committee for examination. 

Upon this state of facts the sub-committee came to these 
conclusions: 1 

1 There was another question of some general interest raised. 
There was a great deal of testimony to show, that St. Paul's Church 
was almost universally known and spoken of as St. Paul's Church, 
Tompkinsville; indeed, there were several important acts of the ves- 
try done under that appellation. Tompkinsville was not incorporated 
as a village, but was termed such by common repute. It had not any 
known or ascertained bounds, yet there could be no difficulty in saying 
it did not extend to New Brighton, a village also unincorporated. 

Now, undoubtedly, had the church been incorporated for the village 
of Tompkinsville, and the boundaries of that village fixed, those would 
have been the limits of the parish ; and the author's impressions were, 
that it was competent for the committee to enter into a consideration 
of the testimony, as the case stood. 

But the majority judged otherwise. They considered it very doubt- 
ful whether we could go behind the title taken in the act of incorpora- 
tion, and by which the church was admitted into union. They inclined 
to the opinion that the convention never meant to use the term village 
in a sense capable of so much difficulty, but that the true meaning 
was, that the village should be incorporated, or its boundaries other 



372 OFFICIATING IN THE CURES 

1. That the express permission of the canon, not being re- 
quired to be in writing, was to be construed as a permission 
clearly manifested and established. The permission for the 
organization of a new church could be proven by the presence 
and participation of the rector at the preliminary meeting ; by 
officiating in the new church after its organization ; by acqui- 
escence with knowledge, in its admission into union ; by the 
absence of any remonstrance for a reasonable period of time ; 
or by any other satisfactory evidence of approval. 

That the assent of the rector of St. Andrew's to the organ- 
ization of St. Paul's by its corporate title must be assumed from 
his failure to remonstrate at the Convention, which admitted 
that church, although, as appeared by the journal, he was 
present — and from the lapse of so long a period. 

2. That but for the existence of the chapel at Factory ville, 
the surrender of rectorial jurisdiction for the whole town of 

Castleton would have been complete ; and that town would 
have- formed under the canon, the parish of St. Paul's. But 
that the existence of that chapel within the town worked a re- 
servation of authority in the rector of St. Andrew's — caused the 
case to fall within the other clause of the canon ; and thus 
there were two churches, with two settled ministers, having, 
for the purposes of the canon, co-equal authority. This was 

wise legally settled. "^ And if these propositions were doubtful, they 
concluded that the evidence was insufficient to vary the case as it ap- 
peared on the official records. 

As connected with this subject, reference was had to the following 
authorities: Cowel's Interpreter in voce, Statute 13 and 14, Car. 2, c. 
12; 1 Inst., fol. 115. Lord Coke says, "A village must consist de 
pluribvs mansionibus ct vicinis. 5 Maule & Selwyn, 381. See the 
case of the Borough of West Philadelphia, 5 Watts & Serg. 383. An 
act of the legislature empowers the quarter sessions to incorporate any 
town or village containing three hundred inhabitants. " The words, 77 
says Chief Justice Gibson, "do not embrace a champagne country, but 
a collection of houses collocated after something like a regular plan in 
regaid to streets and lanes, without intervening farm land, but with a 
convenient curtelage attached to each. 77 



OF OTHER CLERGYMEN". 373 

subject to the necessary exception of an exclusive power in 
each, in his own church-building and precincts, and among 
his own people. Of course the rector of St. Andrew's had an 
entire right to officiate in the incorporation of Christ Church. 

3. That the rector of the parish, who was opposed to the for- 
mation of a new church, could have no prohibitory redress. 
He could not enjoin the worshippers from meeting and going 
through the formalities of the statute. Whether he could pre- 
sent the minister who should officiate previous to such meet- 
ing (as in New- York is necessary for two Sundays,) must de- 
pend upon the question whether a minister subsequently offi- 
ciating was within the canon, or not. If the organization and 
incorporation exempted the latter from the operation of the 
canon, it must extend to the acts of those who fairly assisted 
in the necessary steps to effect that incorporation. 

4. That such organization and incorporation did not of itself 
entitle the church to admission into a union with Conven- 
tion. The power to admit or refuse was absolute and unre- 
stricted in that body, and although in New- York, an incorpo- 
ration was a pre-requisite to admission, it did not constitute 
a title to it. 1 

1 The following is an extract from the report of the sub-committee 
on this point: " Another view which has been presented on behalf of 
the applicants is. that the mere fact of an incorporation under the 
statute takes the case out of the operation of the canon. With this 
view, the committee can by no means agree. 

u The incorporation of the church is nothing but the consent of the 
civil authority that, upon certain conditions and forms being observed, 
the church should be invested with the franchises and privileges of a 
corporate body. It is the assent of the state, as far as any powers of 
the crown have devolved upon it, to the formation of new churches or 
parishes. 

"The ecclesiastical organization of a church is entirely distinct. 
The government of its ministers is a matter unaffected by the civil 
laws. The state never intended, and never should be permitted, to in- 
terfere with these. The eleventh section of the act of 1784 ; contains 
the sound principle. The precedent in Maryland, in the case of Christ 



374 OFFICIATING IN THE CURES 

5. That for reasons similar to these which led to this re- 
sult, as well as other considerations, the statutory incorpora- 

Church in 1844. and that of Louisiana in 1848, bear pointedly upon 
the question ; and the language of Bishop Onderdonk, in his address of 
1840, is very pertinent. 

" l Nothing herein contained shall be construed in the least to alter 
or change the religious constitutions or governments of either of the 
said churches, congregations or societies, so far as respects or in any- 
wise concerns the doctrine, discipline, or worship thereof.' (Act of 
1784.) 

"In the case of St. Peters, Bethel Church, New Orleans, in 1848, 
an act of incorporation under a law of the state was produced. The 
committee reported that if St. Peter's was an independent congrega- 
tion, formed as every other has been in New-Orleans, for the accommo- 
dation of certain members of the laity, who designed to buy lands, 
build a church, and afterwards sustain it by the contribution of its 
members, the committee did not see any objection to its admission, 
but that it was an important fact that St. Peter's Church, as presented 
for admission, is actually engrafted on a congregation, that was already 
gathered by the Rev. Mr. Withall, as a mission station of the city mis- 
sion of New Orleans, and designed to be for ever a free Church for sea- 
men and boatmen in New Orleans. The committee proceed to state 
various reasons showing that the proposed organization would interfere 
with the objects sought by the mission society, and concluded with a 
resolution that it was inexpedient to grant the application. In this the 
convention concurred. 

"In the address of Bishop Onderdonk to the convention of 1840, he 
says : ' These corporations are indeed composed of members of the 
Church, as citizens of the commonwealth. But it should be remem- 
bered that they avail themselves of this civil privilege as members of 
the Church. I presume it will be conceded that there is a fair and 
honorable compact with the civil authorities, that when they seek civil 
rights in their capacity as a Church institution, it is solely that they 
may be exercised for the Church, and in subordination to its principles 
and views.' 

"The case of Christ Church, Hagerstown, in Maryland, is also in 
point. In the minority report, it is said — ' It is asserted that whether 
or not a new congregation shall be received as a member of this con- 
vention is wholly independent of any civil law, but depends exclu- 
sively upon the canons of the Church, or in the absence of any canonical 
provision, upon the mere discretion of the body, to be governed by 
questions of expediency. In the general and abstract, the undersigned 
are not disposed to dissent from these doctrines, &c.' 

" The majority reported, that the proposal to incorporate grew out 



OF OTHER CLERGYMEN. 375 

tion could not affect or limit any purely ecclesiastical regula- 
tion for the conduct or duty of ministers. The whole question 
was, then, whether the 31st canon, upon received principles 
of construction, comprised the case ; and in the judgment of 
the committee it did so. 

That no injury to the Church, or at least one of a mere 
temporary nature, could arise from this view. If the opposi- 
tion of the minister was unjustifiable, redress, if from no 
other quarter, could clearly be had from the diocesan conven- 
tion. The power to divide parishes, to agree to the formation of 
new ones, to the organization and establishment of a new 
church, was in that body ; and an act of admission into union 
did, in fact, amount to a ratification of the whole proceedings, 
and would supersede the application of the canon. 1 

of dissensions in the parish, and that the object of the parties was to 
sit under the preaching of some gentleman with whose doctrines they 
could more entirely agree, than with those of the rector of St. John's. 
That these were not legitimate grounds of separation of a parish. 

" In New-York, upon the remonstrance of the vestry of Trinity 
Church, Christ Church, though incorporated, was refused admission into 
union at three different conventions. 

11 Nothing can be more clear or more important, than the distinction 
between the ecclesiastical organization and the civil incorporation of a 
Church. 

"The statute itself recognizes and presupposes that the former is ac- 
complished to a great extent. But it is not perfect under our system, until 
a union with the convention is had. There is no such thing as an in- 
herent right to admission by reason of having completed a parish or- 
ganization with a rector and vestry, nor can the statutory incorporation 
give such a right. 1 ' 

1 A practical difficulty was seen to exist in New- York and some 
other dioceses. There must be an incorporation of the church before 
it is admitted into union; and the services of a minister are necessary 
at the preliminary meetings for two Sundays. But such minister 
would be within the canon — intruding into the cure of another. The 
incorporation would be no doubt legal under the statute, but would be 
canonically irregular. The decisive answer to this appears to be. that 
a difficulty which the convention could remove by a canon, as in Vir- 
ginia or Maryland, perhaps by special legislation in a particular case, 
ought not to be sufficient to overrule what seemed the true meaning of 
the general canon, and actual rights under it. 



376 OFFICIATING IN THE CURES 

6. That under the canon of this diocese (New- York) the act 
of incorporation is to be approved of by the Bishop ; and that 
power is now vested in the Standing Committee. It would 
be a very anomalous proceeding to give such approval, and 
then to be compelled to entertain a presentment of a minister 
officiating without permission. The consent, therefore, could 
not be granted in opposition to the decided written remon- 
strance of the rector. 1 

7. And lastly, that they could not enter into the consideration 

1 Tn the first place the terms of the canon are perfectly clear, and 
sufficiently comprehensive to include the case. If the policy of the 
Church is sound, to protect a clergyman from an unauthorized interfer- 
ence with his flock, the injury to him will be as great, where a 
body of his parishionersis gathered together under the forms of an 
organization, as where he is subjected to occasional and broken intru- 
sions. At any rate this point was one lying on the very surface of the 
subject, and the General Convention made no qualification of the gene- 
rality of its language. 

Next, the framers of the canon employed the familiar language of 
the English law. " There is no rule of ecclesiastical law," says Dr. 
Burns, "more firmly established than this, that it is not competent for 
any clergyman to officiate in any church or chapel within the limits of 
a parish, without the consent of the incumbent." (Vol. 1, p. 306.) 

" The consent of the incumbent to the erection and use of a Church 
or chapel, is requisite/' is the language of Lord Stowell. It is an in- 
ference of the strongest character, that when they used such terms, 
with a knowledge that such was the English law, and used them without 
qualification or exception, they used them in the sense of that law. 

It may be useful on this important point to advert further to the 
canon law in relation to this matter, as well as to some authorities in our 
own country. It may be observed that in some sense the organization of 
a new church, (even in a city,) is the erection of a new parish, or at 
least the establishment of a new parochial cure. 

By the English law, the consent of the rector of a parish to its divi- 
sion, or the erection of a new church within its limits, is indispensable. 
Lord Stowell, (Duke of Portland and Bingham, 1 Cons.R. 161.) says: 
" No decision that I know of has gone the length of laying down that 
even in the case where the necessity of an increased population was 
urgent, and where the consent of the incumbent has been causelessly 
and obstinately withheld, the authority of the Bishop could yet be in- 
terposed to remove the obstruction. When such a case arises, it may 



OF OTHER CLERGYMEN. 377 

of any objection to the right of the church of St. Paul's to 
remonstrate, resting upon the alleged illegality of its own 
incorporation. To try such a question indirectly, and after a 

require grave consideration to find the proper remedy against so im- 
proper an abuse of the general right.''' 

This principle is adhered to in the statute of 1 and 2 Victoria, cap. 
32, although the division of a parish and building of a new church be 
sanctioned by the Bishop, then by the Archbishop, and lastly by the 
Queen in Council, yet if the incumbent refuses his consent, it cannot be 
completed until a vacancy occurs. 

But in this the English law differs from the whole body of the canon 
law. and is perhaps founded on the rights to tithes and dues attached to 
a cure. It is well settled in the general law of the Church, that new 
parishes may be formed, or new churches built in opposition to the 
will of the rector, if upon hearing him. the Bishop should deem it for 
the interest of the Church that it should be done. With this rule a canon 
of the Episcopal Church of Scotland coincides." (See ante p. 230.) 

" Now in several of our dioceses, this power is expresslv asserted to 
exist in the diocesan conventions, and is exercised and regulated by 
them.' 5 

The report proceeded to cite the regulations in Maryland. Virginia, 
and Alabama, before stated. (Ante. p. 233.) 

u The committee have been referred by the applicants to two cases. 
One was in the diocese of South Carolina, four or five years since — the 
case of "Grace Church, Charleston. ;; In this instance every thing 
necessary for the erection of an edifice had been prepared, when it was 
signified to the vestry that a majority of the parochial clergy of 
Charleston would object to the officiating of the minister wi.oiu the 
vestry desired to call. So general had been the construction of the 
canon, which gave the power to the city rectors, that at first it was 
thought that the enterprise would have to be abandoned. A closer ex- 
amination of the canon, however, led to the conviction that it was not 
intended to affect the erection of new churches, and. the organizition of 
new parishes : but simply to prevent the officiating of one minister 
within the bounds of others' parishes unless permission were first 
granted: that so far as any canon of our Church is concerned, the or- 
ganization of a vestry, even within the bounds of another parish, con- 
stitutes it a distinct ecclesiastical body, with power to caii a 
as clear and undisputed, as that which the vestry of the original pa - 
possesses. The case was thus presented to the paroc:a:il clergy ob- 
jecting, and after due deliberation, all opposition was waived upon the 
precise ground above stated. Objection was subsequent. J the 



378 OFFICIATING IN THE CURES 

formal union with the convention for such a length of time, 
was wholly inadmissible. 

admission of " Grace Church" into union at the meeting of the conven- 
tion, but it was voted down, and the enterprize succeeded. 

" The second instance referred to, occurred in the diocese of Pennsyl- 
vania, m 1839-40, in the case of the Church of the Advent, Philadelphia. 
That church was organized by laymen from the parish of the Rev . 
George Boyd, Rector of St. John's Church, N. L., Philadelphia. They 
organized — hired a temporary place of worship near the parent church, 
and called the Rev. John J. Kerr as their minister. Dr. Boyd and 
others presented the Rev. Mr. Kerr for a violation of canon 31. The 
presentment was dismissed by Bishop H. U. Onderdonk, (who, it is re- 
ported, is the author of canon 31, as it now stands,) on the avowed ground, 
that it has no reference whatever to organized parishes, or to the cler- 
gymen duly called thereby ; and that to give such a construction to it 
would be to put it in the power of any minister first settled in any city, 
township or village, to prevent the extension of the Church therein ; a 
thing never contemplated by those who drew and passed the canon, and 
one never to be tolerated in a country like ours. At the ensuing dio- 
cesan convention, when the question came up on '• the Church of the 
Advent " into union, Dr. Boyd opposed : when under the advice and 
opinion of Mr. Horace Binney, the church was admitted on the precise 
ground above stated." 

" On the other side, in the year 1849, in the diocese of Wisconsin, a 
committee appointed in the previous year for preparation of instructions 
for the organization, &c, of parishes reported — ' ; That care should be 
taken not to interfere with the canonical rights of any other clergyman 
by organizing within the bounds of his parish." The 3 1st canon is 
then quoted, and it is observed — If there be two or more organized 
parishes within the above defined boundaries, then the consent of the 
major number of the parochial clergy of the said churches or parishes, 
must be first obtained. The first step, therefore, to be taken when 
about to organize a parish, is to obtain in writing the consent of the 
minister or ministers, within whose parochial bounds it is proposed to 
organize a new parish. This consent will prevent the possibility of 
the minister who may be called to the new parish, being persecuted 
for violating the requirements of the general canon above referred to." 

This report was submitted to Judge Miller, of the United States 
District Court, and approved of by him. 

" While the committee look upon the precedents in South Carolina 
and Pennsylvania with great respect, they are unable to yield to them 
as authorities. The former resolves itself into the opinion of able and 
conscientious men, changing their first impressions. The admission 



OF OTHER CLERGYMEN. 379 

The author ventures to suggest in the note a series of 
regulations upon this subject. In his judgment, either the 
system should be wholly abandoned, as has been suggested in 
Virginia, or the rules should be freed from what is supposed to 
be great obscurity and difficulty. 1 

into convention in that diocese, and also in the case in Pennsyl- 
vania, has no weight whatever upon the question. Nothing can be 
clearer than the power of a convention to assent to the formation of a 
new parish, and thus for the future at least, to prevent the application 
of the canon. An admission into union is such an assent. Thus, the 
precedent in Pennsylvania is reduced to the strong authority of Bishop 
H. U. Onderdonk. But the committee must suggest that the reasons 
assigned by him do not seem well founded. The right of a convention 
to meet the case by a canonical regulation supplies an answer to 
them all." 

1 I. A new parish may be established, or a new church or congrega- 
tion organized within the limits of any parish whose limits are pre- 
scribed by law or otherwise, or within the limits of any city, town, vil- 
lage, or borough, in the following manner: 

1. Upon the written consent of the minister or rector having charge 
of a church or congregation within such limits, when there shall be 
but one church or congregation with a minister in charge thereof; or of 
the wardens and vestry of such church or congregation, where such 
church or congregation is without a minister. 

2. "Where there are more than one such church or congregation, and 
less than four, upon the written consent of a majority of such ministers. 

3. And where the number of such churches or congregations shall 
exceed three, then upon the written consent of the ministers of the two 
churches or congregations, whose places of public worship shall be the 
nearest to the place proposed as the place of worship of such new 
parishioners. 

The written consent, in the preceding cases, shall be filed with the 
secretary of the Standing Committee previous to any measures being 
taken for the organization of such new parish. 

In each of the preceding cases, the consent in writing of the eccle- 
siastical authority must be given to the establishment of such new 
parish. 

II. If the consent of the minister or ministers as aforesaid is denied 
or withheld, application may be made to the ecclesiastical authority 
for the establishment of such new parish; of which application two 
months' previous notice shall be given to the minister <. r ministers 
whose consent is so denied or withheld. 

The decision of the ecclesiastical authority, if in favor of the ap- 



380 PERSON'S OFFICIATING, NOT MEMBERS 

3d. Under the 3d subdivision of this canoiTii may be re- 
marked, that the inability to perform the services must be 
coupled with an unjustifiable refusal of consent to employ 
another— that proof of such neglect and refusal must be made 
to the Bishop or Standing Committee, and that either of these 
may depute persons before whom the proof shall be made. 

Again, if by the law of any diocese there should be a set 
of persons appointed to hear and decide complaints against 
clergymen, that body may receive such proof. This, no 
doubt, must be a permanent body, established for such a 
purpose. The Ecclesiastical Court appointed in Maryland in 
1847 would be of this character. 

Next, although the canon declares simply that the church- 
wardens shall, on proof of the neglect and refusal, have power 
to open the doors of the church to any minister, yet no doubt 
there must be some formal act of the authority applied to, 
sanctioning the proceeding. The proof is to be not only of 
inability, but of the refusal, and its reasonableness. There 
should be a decision on these points, and some record of such 
decision. 



TITLE VIII. 
OF PERSONS OFFICIATING, NOT MEMBERS OF THE CHURCH. 

[Canon XXXYI. General Convention, 1832.] 
" J\ T o person shall be permitted to officiate in any congre- 
gation of this Church without first producing the evidences of 
his being a minister thereof, to the minister, or in case of a 
vacancy or absence, to the churchwardens, vestrymen, or 
trustees of the congregation." 



The first canon was the 5th of 1792. It was the same as 

plication, shall be final; but if otherwise, the case shall be reported to 
the convention, with the reasons for withholding an assent, for the 
final action of that body. 



OF THE CHURCH. 381 

the first paragraph as the present one, using the word, 
" stranger " instead of "person." There was an additional 
clause, that in case any person not regularly ordained should 
assume the ministerial office, and perform any of the duties 
thereof in this Church, the minister, &c, should cause his 
name and offence to be published in as many public news- 
papers as thought fit. 

The 35th canon of 1808, which was the next, differed 
only in substituting the word person for stranger. 



It is justly remarked by Dr. Hawks, [Cons, and Canons, 
333,) that by the other laws of the Church, the person must 
be known or proven to be a clergyman, before he can be per- 
mitted to officiate, and in case he is a foreigner, must produce 
a certificate of the Bishop, or Standing Committee. It would 
therefore be a case of discipline upon the admitting clergymen 
who should permit the services, without being duly and 
canonically satisfied. 

25 



CHAPTER VI. 

OF THE PENAL LAW OF THE CHURCH. 



TITLE I. 
AMENABILITY OF MINISTERS. 

[Canon V. of General Convention, 1835.] 

" Every minister shall be amenable for offences committed 
by him, to the Bishop, and if there he no Bishop, to the cleri- 
cal members of the standing committee of the diocese, in 
which he is canonically resident at the time of the charge." 

By the 3d canon of 1804, every minister was made amena- 
ble to the ecclesiastical authority of the diocese in which he 
resided, for any offence committed by him in any diocese. 

In the 4th canon of 1829, the words italicised, were omitted. 

The 35th canon of 1832, was the same as the pre. int. 



After a long struggle, commencing in colonial times, the 
question has been finally settted of the exclusive liability of a 
clergyman to a clerical tribunal. From 1804 to 1832, in 
many of the states destitute of a Bishop, there was no 
constituted body, except the standing committee, which could 
answer to the title of the ecclesiastical authority. In almost 
every state, laymen formed part of this committee, and the 
trial of a clergyman might be had before them, though not be- 
fore them solely. 

In New- York, for example, by one of the resolutions of 
1786, the convention was the tribunal for the trial of ofFences, 



384 AMENABILITY OF MINISTERS. 

and when the sentence was deprivation of office, an appeal was 
allowed to the general convention. In the note I have stated 
the course in two other states. That in Virginia is peculiarly 
instructive. 1 

1 Journal New-York Convention, p. 16. Onderdonk's Ed. 

In Maryland, a standing committee was appointed by a canon of 
1788. composed of five clergymen, and five laymen, to whom belonged 
all matters of government and discipline during the recess of the con- 
vention. In 1795, and later, the system prevailed, of an examination 
into an alleged offence by the standing committee, who reported the 
facts to the convention, by which body, composed of clergy and laity, 
sentence was passed, which the Bishop pronounced ; but he was only 
the organ of the convention in declaring it. (2 Hawks' Conv. p. 303, 
Ibid. p. 316.) 

In Virginia the mode was similar. By the act of the Legislature of 
1784, the ministers and laymen, met in convention, shall have full 
power to remove from a parish any minister accused of unworthy con- 
duct or neglect of his duties. The convention, however, was prohibited 
from making any general rules whereby the minister could be turned 
out of his parish without the consent of a majority of the vestry. It 
was under this act that the first convention was organized, and its pro- 
visions were accepted and acted upon. Bishops were amenable to the 
convention, which was constituted a court to try them without appeal. 
For clergymen, a court was to be established, consisting of three ves- 
trymen taken from the nearest parishes. (1 Hawks' Con. App. p. 
1. Ibid. p. 7.) 

In 1786, this act was repealed. In 1787, the convention adopted an 
ordinance embodying many of its provisions, and leaving to the con- 
vention the power to regulate the Church, its doctrine, discipline, and 
worship. The canons of 1785, were then in substance newly enacted. 

One of these was, that no Bishop should inflict any censure upon, or 
exercise any power, over the clergy under his inspection, other than he 
was allowed to do by the laws and institutions of the Church made in 
convention. 

Through successive variations of details, the principle was retained 
of a tribunal composed of clergymen and vestrymen. In 1799. the 
canons were revised, and all prior regulations were repealed. This 
provision, however, was retained and continued to be the law of the 
Church until 1815, when a new body of canons and a constitution were 
adopted. The standing committee, consisting of three clerical and 
three lay members, was then constituted the court. In the revision of 
1823, the same method was preserved. But in 1824, a radical chang e 



AMENABILITY OF MINISTERS. 385 

In a previous part of this work, I have noticed the attempt 
in South Carolina at a very early period to engraft the princi- 
ple of lay jurisdiction into the code of the Church, the resistance 
it met with in the colony, and its decided condemnation in 
the House of Lords. The attempts in Maryland were also ad- 
verted to. 

Although, in general, ecclesiastical jurisdiction in England 
is administered by laymen, yet the theory of the Church is, 
that they are but the deputies of the Ordinary, and act by 
delegated authority. The charter of "William the Conqueror, 
which abolished the holding of pleas in the hundred by the 
Bishop, established his Consistory Court in every diocese, and 
enabled him to assign to particular persons what share of 
Episcopal jurisdiction he thought tit. From this source arose 
the authority of chancellor, official, &c. 

The Dean of the Arches is the official principal of the 
Archbishop of Canterbury. 1 



took place. The standing committee was directed to inquire into any 
allegation against a clergyman ; and if sufficient cause of trial was 
found, a council of presbyters, not less than three, was organized under 
the direction of the Bishop, for the trial. 

1 Gibson's Codex. Vol. 2. p. 970. Stillixgfleet's Ecc. Ca.. p. 237, 
etseq. Lord Hale says, i; Every Bishop, by his election and confirma- 
tion, even before consecration, hath ecclesiastical jurisdiction annexed 
to his office as Judex Ordiaarius. within his diocese." (Hale's Hist. 
Com. Law. 28.) By a constitution of Archbishop Chichely. it was or- 
dained: "We, following the footsteps of the holy canons, do decree, 
that no clerk married, nor bigamist, nor layman, shall upon any pre- 
tence in his own name, or in the name of any other, exercise any 
spiritual jurisdiction/' &c. 

The statute 37 Henry VIII. , c. 17, enacted, that " all or any persons, 
whether lay or married, being doctors of the civil law, lawfully create, 
who should be appointed to the office of Chancellor, Vicar General, 
Commissary, Official or Register, may lawfully exercise all ecclesiasti- 
cal jurisdiction;" but the statute does not interfere with the appoint- 
ment of these officers. 

The courts are of two classes — those which arise under the Arch- 
bishop's authority, and those which spring from the Bishop's jurisdic- 



386 AMENABILITY OF MINISTERS. 

By a canon of the Irish Church, of the year 1634, no 
chancellor, commissary, official, or any other person, shall ex- 
ercise any ecclesiastical jurisdiction over a minister in causes 
criminal, unless he himself have been admitted into the holy 
order of priesthood. (4 Burn's Ecc. Law, 686.) 

So in Scotland, by the 36th Canon of 1838, the accusa- 
tion must be brought before the Bishop sitting in Diocesan 
Synod, who shall appoint the dean or some other presbyter to 
state the charge, and bring forward the evidence, and after a 
full hearing and taking the opinion of each member of the 
synod, shall pronounce the sentence. An appeal is given to 
the college of Bishops. 

By the Act 3d and 4th Victoria, cap. 86, the Bishop of 
the diocese within which the offence is alleged to have been 
committed, may issue a commission of inquiry to five persons, 
whether there is prima facie ground for instituting further 
proceedings. If the commissioners report that there is ground, 
the Bishop himself, or the party complaining, may file articles 
in the registry of the diocese. If the party appear and admit 
the truth of the articles, the Bishop or his commissary, spe- 
cially appointed, shall proceed to sentence. If otherwise, the 

tion. The first are the Provincial Court of Canterbury, the Court of 
Arches, being the Supreme Court of Appeal, the Prerogative or Testa- 
mentary Court, and the Court of Peculiars. In the province of York is 
the Prerogative or Testamentary Court, and the Chancery Court. In 
the second class are the Diocesan Courts, being the consistorial court 
of each diocese, the court of one or more commissaries appointed by 
the Bishop to exercise general jurisdiction within prescribed limits, 
the courts of Archdeacons or their officials exercising general or limit- 
ed jurisdiction according to their patents or local custom. There are 
also peculiars having some jurisdiction in various dioceses. 

An appeal from the provincial courts lies to the king, who formerly ap- 
pointed certain persons as delegates to hear it. This court was abolished, 
and an appeal given to the Judicial Committee of the Privy Council by an 
act of 2d and 3d William IV. An examination of the law, as stated 
by Burns and Dr. Phillimore, under the various heads of Archdeacon, 
Arches, Chancellor, &c, will establish the proposition in the text. 



OF PUNISHABLE OFFENCES. 387 

Bishop is to proceed, with the assistance of three assessors, 
one of whom must be an advocate of five years standing, or a 
sergeant at law, or barrister of not less than seven years' stand- 
ing, and another shall be the dean of his cathedral church, &c. 
The Bishop determines and pronounces sentence there- 
upon according to the ecclesiastical law. He may also send 
the case, by letters of request, to the Gourt of Appeals of the 
province. 



TITLE II. 
OF PUNISHABLE OFFENCES. 

[Canon XXVII. General Convention, 1832.] 
" § 1. Every minister shall be liable to presentment and 
trial, for every crime or gross immorality, for disorderly conduct, 
for drunkenness, for profane swearing, for frequenting places 
most liable to be abused to licentiousness, and for violation of 
the constitution or canons of this Church or of the diocese to 
which he belongs ; and on being found guilty, he shall be ad- 
monished, suspended, or degraded according to the canons of 
the diocese in which the trial takes place, until otherwise pro- 
vided for by the Greneral Convention. 

" k 2. If any minister of this Church shall be accused by 
public rumor of discontinuing all exercise of the ministerial 
office without lawful cause, or of living in the habitual disuse 
of public worship, or of the Holy Eucharist, according to the 
offices of this Church, or of being guilty of scandalous, disor- 
derly, or immoral conduct, or of violating the canons, or preach- 
ing or inculcating heretical doctrine, it shall be the duty of 
the Bishop, or if there be no Bishop, the clerical members of 
the Standing Committee, to see that an inquiry be instituted 
as to the truth of such public rumor ; and in case of the indi- 
vidual being proceeded against and convicted, according to 
such rules or process as may be provided by the conventions 



388 OF PUNISHABLE OFFENCES. 

of the several Dioceses, he shall be admonished, suspended, or 
degraded, as the nature of the case may require, in conformity 
with their respective constitutions and canons." 



The first Canon on this subject was the 13th of 1789, the 
next the 1st of 1801, then the 25th of 1808, and the 2nd of 
1829. 

That of 1789 was as follows : — No ecclesiastical person 
shall, other than for their urgent necessities, resort to taverns 
or other places most liable to be abused to licentiousness. 
Further, they shall not give themselves to any base, or servile 
labor, or to drinking or riot, or to the spending of their time 
idly ; and if any offend in the above, they shall be liable to 
the ecclesiastical censure of admonition, or suspension, or de- 
gradation, as the nature of the case may require, and accord- 
ing to such rules or process as may be provided, either by the 
General Convention, or by the convention in the different 
states. 

The Canon of 1801 was an addition to the former and con- 
tained merely an enumeration of some of the particular offences 
contained in the 2nd section of the present Canon. 

That of 1808 combined the previous provisions, but omit- 
ted the words " either by the Gfeneral Convention or," which 
are above italicised. 

In 1829 the Canon of 1808 was repealed, and one adopted 
precisely the same as the 2nd section of the present Canon of 
1832, except that the phrase " Ecclesiastical authority " was 
used instead of " the clerical members of the Standing Com- 
mittee." 

In general the provision in the Dioceses as to triable 
offences is similar to that in South Carolina, which is as fol- 
lows: — " A clergyman shall be subject to a trial for offences 
enumerated in the Canon of the General Convention c Of 



OF PUNISHABLE OFFENCES. 389 

Offences for which a Minister shall be Tried and Punished? 
and in the Canons of this Convention." 1 

I have before stated the discussion which took place in 
Maryland in 1847, and the objections raised to Canon 5, which 
was an enumeration of offences for which a clergyman might 
be brought to trial. That Canon was passed, and is as fol- 
lows : " Every presbyter or deacon of this diocese who shall 
wilfully disobey the Constitution, or any Canon of the General 
Convention of this Church, or of this diocese, or any rubric, 
or shall fall into a general neglect of public worship, or engage 
in gaming or any other vicious or corrupting amusement, or 
shall frequent places most liable to licentiousness, or commit 
any disorderly or scandalous action, or violate any of the 
Divine precepts, or his ordination vow, or shall teach or 
publicly avow any heretical doctrine, or shall without law- 
ful cause discontinue the exercise of his ministerial office, 
or separate himself from the Communion of the Church, shall 
be liable to ecclesiastical trial and censure." 

The committee w T hich reported this Canon state, that it 
was taken partly from the 37th Canon of the General Conven- 
tion, and partly from the 17th Canon of the old Maryland 
Code, which defines the offences for which a layman is liable 
to trial. {Journal 1847, p. 48.) 

In like manner in Connecticut by Canon 3, (1825,) it is 
enacted as follows : — " Disorderly and immoral conduct, vi- 
cious or unseemly diversions, neglect of duty, disregard of the 
Constitutions and Canons of the General or State Conventions, 
or deviation from the rubrics, and disseminating or countenan- 
cing' opinions which are contrary to the doctrines of the Pro- 
testant Episcopal Church in the United States, are offences 
for which a clergyman may be brought to trial." 

The committee of Maryland, in their able report upon this 
subject, notice the impossibility of enumerating all the offences 



Article 11. of the Constitution. The same is the form i ^Wisconsin. 



390 OF PUNISHABLE OFFENCES. 

for which a clergyman ought to be subject to censure. That 
the same strictness of construction, as in case of crimes against 
civil society, is unadvisable here. Dr. Hawks also mentions the 
case of Bishop Smith of Kentucky, where it was insisted, that 
the general phrase in the first section of Canon 37, " any 
crime or gross immorality," was qualified by the subsequent 
words ; and that no minister could be tried for any offence 
but those enumerated in the section. Hence that there was 
no law to try the accused for falsehood, the offence charged. 
The court — Bishops Mcllvaine, Kemper and McCoskry — ne- 
gatived this construction at once, and held that a clergyman 
was liable to trial for any offence against religion and morals, 
though not specified in any Canon. 1 

The terms employed in the general canon would appear to 
comprehend every possible violation of the positive law of the 
Church, and every offence against morals or religion. In the 
first place, the phrase " any crime," may be taken in its gen- 
eral legal acceptation, " the commission or omission of an act 
in violation of a public law forbidding or commanding it." 2 
And yet, it may be urged, that it is to be taken in its more 
popular and restricted sense — a violation of what is termed the 
moral law. 

Again, the phrases, " gross immorality," and " disorderly 
conduct," would seem broad enough to embrace every devia- 
tion from virtue or order, which can reasonably be treated as 
censurable by the infliction either of the lowest or highest 
grade of punishment. Offences against our own Lex Scripta, 
the mala prohibita, seem amply provided for in the clause 
respecting the constitution and canons of the General or Dio- 
cesan Conventions. 

And }*et, how some of these terms are to be interpreted 
can only be settled by induction from judicial determinations. 

1 Constitution and Canons / 338. 

s Stephen a Criminal Law, p. 1. 4 Black. Com., 5. 



OF PUNISHABLE OFFENCES. 391 

And while a full enumeration and specification of offences is 
neither practicable, nor would be wise, the author suggests 
that some of the clauses in the canons of Maryland and Con- 
necticut, especially that of "separation from the Church," 
ought to be included. 

Indeed, it seems very desirable that the canon of the Gen- 
eral Convention should be rendered as perfect as possible, and 
supersede all canons of the separate dioceses. We might 
then expect, in the course of time, to have an approach at 
least to uniformity of exposition and settlement of our penal 
code. 

The cases in New York in 1849, of Dr. Forbes and others, 
led to the discussion informally of an interesting point. 

A question raised was, \ vb ether a presentment for schism 
simply, (whatever may be the specifications,) but with no other 
offence charged, can be canonioally proceeded upon. It is not 
whether acts which have been or are treated as schismatical 
by the Church may not be punished, but whether the offence 
eo nomine is presentable. 

It is to be remembered that the party accused must be 
found guilty of the charge. If the proof of the specifications 
established an offence really presentable, but the charge is not 
such, the party must escape. It is also to be noted that 
schism is not enumerated among the offences for which a 
minister may be brought to trial in any canon of the General 
Convention. 

The first inquiry is, what is the canonical meaning of the 
phrase? I limit my inquiry to its sense in English law. I 
have searched in vain for an authoritative definition of it, nor 
can I find a proceeding in the English ecclesiastical courts ex- 
pressly for it. Its true meaning I think must be gathered from 
the specification of what is pronounced schismatical in the 
English standards of rule. 

Now in the 9th Canon of 1603, entitled " Authors of 



392 OF PUNISHABLE OFFENCES. 

Schism in the Church of England censured," it is thus pro- 
vided: " whoever shall hereafter separate themselves from the 
communion of saints as it is approved by the Apostles' rule in 
the Church of England, and combine themselves together in a 
new brotherhood, accounting the Christians who are conform- 
able to the doctrine, government, rites, and ceremonies of the 
Church of England, to be profane and unmeet to join in the 
Christian profession, let them be excommunicated ipso facto, 
and not restored, but by the Archbishop, after their repentance 
and public revocation of such their wicked errors." 

So in the 10th Cauon (1603) entitled, " Maintainers of 
Schismatics in the Church of England censured." " Whoever 
shall affirm that sucli ministers as refuse to subscribe to the 
form and manner of God's worship in the Church of England, 
as prescribed in the Communion Book, and their adherents, 
may truly take unto them the name of another church not 
established by law, and dare presume to publish that this, 
their pretended church, has of long time groaned under the 
burden of grievances imposed upon it and upon the members 
thereof by the Church of England, let them be excommuni- 
cated." 

The 27th Canon is headed, " Schismatics not to be admit- 
ted to the Communion." The minister is forbidden to admin- 
ister it to any that refuse to be present at public prayers 
according to the orders of the Church of England, or to any 
that are common and notorious depravers of the Book of Com- 
mon Prayer and administration of the Sacraments, or of any 
thing that is contained in any of the articles agreed upon in 
Convocation in 1562, or of anything contained in the book of 
ordering the Priests and Bishops, or to any that have spoken 
against and depraved His Majesty's sovereign authority in 
causes ecclesiastical. 

Now from the 9th canon it is plainly deducible that a sepa- 
ration from the Church, by not attending its services, combined 



OF PUNISHABLE OFFENCES. 393 

with a union with another brotherhood (denomination) is 
schism. 

This idea of schism is then precisely what in the canon of 
Maryland (of 1847) is termed separation from the communion 
of the Church, and is made presentable by that canon. 

And it is also plain from the English authorities, that the 
holding and proclaiming schismatical opinions, that is the as- 
sertion, that a separation from the communion of the Church 
with or without union with another is defensible, is punish- 
able as the maintaining of schism or schismatics. 

The Toleration Acts do not extend to ministers of the 
Church so as to enable them, by taking the prescribed oaths, 
to free themselves from subjection to the laws of the Church, 
although they are freed from the penalties in the statutes of 
Uniformity. This is clearly shown in the cases of Carr vs. 
Marsh, (2 Phill., Rep. 253) and the case of Mr. Shore before 
cited. So in Keith's case before Lord Hardwicke (2 Ath. 500.) 
The defendant was cited into the Bishops Court for officiating 
as a clergyman of the Church of England without being 
licensed by the Bishop, and was condemned. Lord Hardwicke 
said : " The Act of Toleration (1 Wm. 8f Mary, cap. 18) was 
made to protect persons of tender consciences, and to exempt 
them from penalties ; but to extend it to clergymen of the 
Church of England who act contrary to the rules and disci- 
pline of the Church, would introduce the utmost confusion." 

A quere is made by some canonists (apud Molinjbus, 
Tome 4, p. 876,) whether schism could exist without heresy, 
upon which point see Van Espen, Juris. Ecc. U/i., pars, iii., 
cap. 2, § 52. 

He notices an important distinction, viz., that if the 
schism is joined with heresy, or based upon heresy, the crime 
is merely ecclesiastical, and to be determined by the eccle- 
siastical judge. But if it is schism without heresy, then the 



394 OF PUNISHABLE OFFENCES. 

secular judge has cognizance of it. This was so declared by 
the Concordat of Brabant. 1 

Now, Lord Mansfield says, that non-conformity was not 
punishable by the common law. The offence was the crea- 
ture of statute. But this must be understood of the punish- 
ment inflicted by the laws of the state. Non-conformity, by 
the law ecclesiastical, has been an offence punishable by the 
Church ever since it was founded. 

Bat the question is not as to the power of the Church in 
its councils to legislate upon this matter, nor even as to the 
power of a Bishop to entertain a presentment, had there been 
no legislation, but the material inquiry is, whether the Church 
has not actually legislated so as to provide substantially for 
the very case. 

Now, under the constitution, Dr. Forbes subscribed a de- 
claration of conformity to the doctrines and worship of the 
Protestant Episcopal Church. By the 8th article of the same, 
a Book of Common Prayer, when established, was to be used, 
&c. Such Book was by authority established, &c. The same 
prescribed, and declared the worship of the Church. A 
part : ? 4 he same was pn office entitled the Form and Manner 
of Orde] ; g of Priests. 

Dr. Forbes was ordained a priest, and when so ordained, 
he promised and vowrd "to give faithful diligence always so 
to minister the doctrine and sacraments, and discipline of 
Christ, as the Lord hath commanded, and as this Church has 
received the same," &c. 

It was capable of proof, that prior to the date of his letter 
he had resigned his charge of St. Luke's Church. An allega- 
tion should be made that he had ceased to minister, following 
the words of the ordination vow; that this was done with, and 
was proof of, an intention no longer so to minister, &c. Then, 
in further pioof, to set forth his letter with its date, declaring, 

\ See also Ayliff, p. 480. 



MODE OF TRIAL. 395 

"that it was his intention no longer to exercise the ministry, 
&c," and followed by an allegation that he had ceased^from 
that time so to minister. 

Again, an article of the presentment could certainly be 
framed under that portion of the canon which relates to the 
discontinuance of the ministerial office, and living in the 
habitual disuse of public worship according to the offices of 
the Church. This, if made out, was in truth schism in it3 
sense of separation from the communion of the Church. 

When a course of procedure effective and clear appeared 
applicable to the case, it seemed very unwise to rest upon a 
charge of schism merely. 

Yet to unite them, and raise the question for the con- 
sideration of the Church, might be expedient. 

The letter of Dr. Forbes, in its last clause, afforded suffi- 
cient proof for an article based upon the maintaining schismati- 
cal opinions, distinguished from the overt act of schism. He 
avows his conviction, that duty to G-od requires him to unite 
himself with the Church in communion with the see of Rome. 

In the case of the Rev. Mr. Roberts in Indiana, in 1850, 
the presentment appears to have been for heresy, schism, 
slander, and a violation of ordination vows. 



TITLE III. 
MODE OF TRIAL. 

The method of presenting an offending clergy- § L 

,. , . , • -li- Presentment 

man, or of bringing a complaint against nun, as 

a a J OR Chabge. 

well as the inquiry founded on public rumor, has 
been left under both sections of the 31st canon of 1832, to 
the regulation of the dioceses respectively. The General 
Convention has only made one provision upon the subject, 
that relating to the service of citations. (Canon 5, 1835, ^ N 2.) 
Accordingly the rules adopted vary much in detail, and some- 
times in principle. 



396 MODE OF TRIAL. 

In North Carolina, the presentment may be made by the 
convention, by the vestry of the parish to which the clergy- 
man belongs, or by three or more presbyters of the Church. 
The charges must be distinctly specified. (Canon o/1817.) 
In South Carolina, a charge is first to be made to the standing 
committee in writing, under the signature of at least two per- 
sons, one of whom must be a presbyter of the diocese. If the 
standing committee consider the offence charged to be within 
the enumerated offences of the Gfeneral or Diocesan Conven- 
tion, and that it ought to be presented, they shall present the 
same to the Bishop in the following form : 

" To the Right Rev. &c, 

" The Standing Committee of the diocese of South Caro- 
lina, respectfully represent, that A. B. has been accused under 
the hand of CD. and E. F. of having been guilty of (insert 
the charge or charges,) and the committee are of opinion that 
there is sufficient ground to present the said A. B. for trial, 
agreeably to the canon in such case provided." (Canon 3, 
Journal 1847.) 

The regulation in Georgia, requires the presentment to be 
by two or more clergymen, or the wardens or vestrymen of 
the Church, to the Bishop, or if no Bishop, to the standing 
committee. (Canon 2, Journal 1847.) 

In Florida, it is to the Bishop, or if none, to the clerical 
members of the standing committee, by the convention, by 
the vestry of the parish, or by three or more presbyters of the 
Church. The charges must be distinctly specified. (Canon 
11, Journal 1846.) In Mississippi, it is to be made to the 
Bishop, or if there be none, to the standing committee, in 
writing, signed by the party making it, and either by the 
convention, by the vestry and churchwardens of the parish, or 
by one or more presbyters. (Canon 4, § 1, Journal 1847.) 

The course in Ohio, is this : The application is to be made 
in writing to the standing committee, with the name of every 



MODE OF TRIAL. 397 

one engaged in it subscribed thereto. If it appear to the com- 
mittee that the evidence is sufficient to demand a trial, they 
shall forthwith present the clergyman to the Bishop, --pacify- 
ing the ofFeace with reasonable certainty as to time, place, 
and circumstances. (Canonl, 1847.) I do not find that the 
parties to make the application are designated. 

The 14th canon of Illinois prescribes, that whenever the 
Bishop shall have reason to believe, on information given by a 
major part in number of the vestry of any church of which 
the accused is a minister, or by any three presbyters entitled 
to a seat in the convention, or from "public rumor," that a 
clergyman is under imputation of being guilty of a triable of- 
fence, he shall appoint three persons to examine the case, and 
if they find sufficient ground for a presentment, they shall 
present him to the Bishop. 

By the canon of Missouri, if any clergyman of the Church 
offend in any one or more of the particulars enumerated in the 
canons of the General Convention or of this convention, com- 
plaint may be made to the Bishop, which shall be done in 
writing by two presbyters, or by three laymen, being commu- 
nicants of the Church. The charge or charges mu^t be dis- 
tinctly specified, and the Bishop, if he thinks fit, shall appoint 
at least three presbyters, who shall constitute a court for the 
trial of the party. (Canon 13, Journal 1847.) 

In Wisconsin, if any clergyman offend against any canon 
of the Greneral Convention of the diocese, complaint may be 
made to the Standing Committee, which shall be done in 
writing, by any two persons who shall be communicants, and 
one of them shall be a presbyter of the Church. The Stand- 
ing Committee, if they deem the charges well founded, shall 
present the clergyman to the Bishop for trial. (6th Canon, 
1847.) 

The method in Pennsylvania is a presentment in writing, 
specifying, with reasonable precision, the crime or misdemea- 
26 



398 MODE OF TRIAL. 

nor charged. It is to be made to the Bishop, either by the 
convention, or by the vestry of the parish to which the accused 
belongs, or by any three presbyters of the diocese. It must 
be accompanied with a statement of the names of the wit- 
nesses and the purport of their evidence. 

In New- York, and in Western New-York, the present- 
ment may be made by the major part in number of the mem- 
bers of the vestry of the church of which the accused is a 
minister, or by three presbyters of the diocese entitled to a 
seat in the convention. Where the inquiry arises from the 
action of the Bishop, upon public rumor or otherwise, a pre- 
liminary investigation is made by five presbyters appointed 
for the purpose. 

In Delaware, the presentment is to be in w T riting, made to 
the Bishop, or in case of a vacancy in the office of Bishop, to 
the president of the Standing Committee. It must specify 
the offences charged, and be signed by the persons making it, 
and is to be made by a majority of the vestry, at a vestry 
meeting duly convened, or if the accused is not connected 
with any parish, by the vestry of the parish in which he re- 
sides, or by four or more male communicants of the same, or 
by two presbyters of the diocese; a presentment always be- 
ing made by one of the above classes, exclusive of the others* 
(Art. 10, Const. Jour., 1844.) 

By the 1st Canon of 1846, of Massachusetts, "informa- 
tion of the offence shall first be given in writing to the Stand- 
ing Committee, which information any member of the Church 
is hereby declared competent to give. The Standing Com- 
mittee shall proceed to a preliminary consideration of the 
case, and if they see fit, may make a formal presentment of 
the offence to the Bishop." 

The presentment must be in writing, addressed to the 
Bishop, specifying the offences with reasonable certainty as 
to time, place and circumstances, and if there is no Bishop, 



MODE OF TRIAL. 399 

then the Standing Committee shall request the Bishop of some 
other diocese to receive the presentment, who may proceed in 
the case, and exercise the same powers as belong or are 
granted to the Bishop of the dioces s. 

In Connecticut a charge is to be made in the first, place to 
the Standing Committee in writing, under the proper signa- 
ture of at least two persons, one of whom shall be a presbyter 
of the diocese ; and if the Standing Committee shall deem 
the offence charged to come within the offences enumerated in 
the canons of the Diocese of Connecticut, or of the General 
Convention, they shall present the same to the Bishop in the 
following form. 1 

It is provided in Virginia, that whenever the Standing 
Committee from their own knowledge, or from information 
derived from others, shall be of opinion that a presbyter or 
deacon of the diocese has been guilty of misconduct, for 
which he is liable to be tried under the 37th canon of the 
General Convention, it shall be its duty to present the of- 
fender to the Bishop, making the presentment in writing, and 
specifying the charges. But nothing herein contained shall 
be regarded as interfering with the duty of the Bishop to in- 
stitute an inquiry on his own motion, according to the said 
37th Canon." 

And in Maryland, whenever the Bishop, shall either from 
his own observation, or from information, which he shall deem 
worthy of notice, have reason to believe that there are grounds 
for an investigation into the conduct of any priest or deacon 
of this diocese, he may in his discretion convene the standing 
committee, and lay before them the information in his posses- 
sion ; and whenever the standing committee, or a majority of 
them shall from any information so laid before them by the 
Bishop, or from any other information which they may think 

1 Canon 4, Journal 1847. The form is like that adopted in South 
Carolina (Ante. p. 386.) 



400 MODE OF TRIAL. 

worthy of notice, be of opinion that a judicial investigation 
should take place, they shall present that fact to the Bishop, 
with such a general statement of the facts of the case as may 
serve for a ground-work on which charges may be drawn. It 
shall be the duty of the Bishop to cause the charges to be drawn 
with reasonable certainty. They are prepared by a Church 
Advocate, who is appointed by the Bishop. 

I shall now advert to the law of England on this head. A 
very elaborate act of Parliament was passed in the 3d and 4th 
Victoria, cap. 86, 1840. It was provided that in the case of 
any clerk who may be charged with any offence against the 
ecclesiastical laws of the realm, or concerning whom there 
may exist scandal or evil report, as having offended against 
the said laws, it shall be lawful for the Bishop of the diocese 
within which the offence is alleged or reported to have been 
committed, on the application of any party complaining there- 
of, or if he shall see fit on his own mere motion, to issue a 
commission to five persons to make inquiry as to the grounds 
of such charge or report. 

One of the commissioners must be the vicar-general, or an 
archdeacon, or rural dean, of the diocese. The others may be 
laymen. Fourteen days notice of the intention to issue the 
commission, with an intimation of the nature of the offence, 
together with the name, addition, and residence of the party 
on whose motion or application it is about to issue, must be 
given to the accused. 1 

Prior to this statute the mode of proceeding was by arti- 
cles in the proper court ; and any person might promote a suit 
against a clergyman for a neglect or violation of clerical duty. 
(Burns by Phillimore, 3, p. 365.) 

It deserves notice that a bill was introduced into Parlia- 
ment, February, 1848, to repeal this act, and to establish a 
system in several particulars differing from it. In all cases 

1 See the Statute in Phillimore's Ed. of Burns, 3, p. 358. 



MODE OF TRIAL. 401 

of heresy, schism, false doctrine, or blasphemy, the proceedings 
are to be had before the same courts, and in the same manner 
as before a certain statute of William IV., that is to say, are 
to be had in the consistorial courts. In all other cases the 
jurisdiction is recognized as in the Bishop of the diocese. The 
provision as to a preliminary inquiry, is this, — " The Bishop 
either on the complaint of any person, or on his own mere 
motion, at any time before articles are filed, may cause a 
preliminary inquiry to be made privately, and may admonish 
the clerk of the charge, the same being previously reduced to 
writing, and he may either personally, or by one or more 
clerks in holy orders, to be nominated by him under his hand 
and seal, make inquiry thereof, and for that purpose may ex- 
amine witnesses on oath ; but this can only be upon the con- 
sent of the accused. If the party confess the truth of the 
charges, and agree that the Bishop proceed to sentence, the 
same sentence may be pronounced as would be made in an 
ecclesiastical court upon a trial." 

In this method it will be seen that the private inquiry is 
attended with no particular result unless the accused party 
consent to the examination of witnesses, and to the rendering 
of a judgment. And it is only in such a case that the inquiry 
prevents the exhibition of articles for a trial. 

It is to be noticed that in a considerable number of the 
dioceses the information or charge, is first to be given to the 
standing committee, and that this body examines or collects 
facts, and judges of the propriety of making a presentment. 
This is the case, with some variations of detail, in South 
Carolina, Ohio, Wisconsin, Massachusetts, Connecticut, Vir- 
ginia, and Maryland. The convenience and advantage of this 
system appear to the author to be very great. 

It will be noticed that in the rules of numerous Form qf pRB . 
dioceses it is directed that the presentment shall segment. 
specify the offence with reasonable certainty as to time, place, 



402 MODE OF TRIAL. 

and circumstances. This is presumed to be absolutely neces- 
sary in every case, although it may not be directed in a canon. 
Whether the presentment is assimilated to the articles of the 
canon law, the libel of the civil law, the bill of the Court of 
Chancery, or the indictment of the criminal code, the rule is 
universal. The specifications of the charge must be attended 
with a reasonable precision as to time and place. 1 

In the application of this rule some latitude is neces- 
sarily allowed. To fix it with legal certainty is impossible. 
To allege for example, that an offence was committed at 
various times within a Diocese would be absurdly illegal. To 
aver that it was committed at various times, or at some time 
within a certain year would not be sufficient. But to allege 
the act to have been done within a particular city or town, in 
a particular month of a certain year, would, it is presumed, 
be legal. 

In the case of Bishop Onderdonk of New-York in the year 
1845, the ninth article was stricken out by a resolution of the 
court as being without reasonable certainty as to time, place, 
and circumstances. The article was that at sundry other 
times within the last seven years, and within the limits of the 
D ocese of New-York, the Bishop had been guilty of, &c. 

There is great force in the views which were taken by seve- 
ral of the Bishops upon the trial of Bishop Onderdonk as to the 
nature of the proceedings for the trial of a clergyman or 
Bishop in our country, viz : that the course of proceeding should 
be regulated by the rule of the common law, and that the pre- 
sentment was in the nature of an indictment, One marked 
advantage of this would be, that upon the plea of not guilty, 
every objection to the presentment for insufficiency in form 
or substance may be taken on the trial, or in arrest of sentence. 

1 Haggard's Rep. vol. 1. p. 43. Gibson's Codex. 1052. Stephens.' 
Criminal Liw. 266. 1 Chitty's, Ibid, 227, 228. Lube's Eq. Phi. 260. 
3 Hacg., Rep. 25. 



MODE OF TRIAL. 403 

(4 Black. Com. 334.) In this manner the complexity and 

delay of civil law proceedings is avoided. The forms of that 
law ensure great precision, but at a heavy price. 

Still it must happen that the very identity of the offences, 
and of the general principles of ecclesiastical law common to 
the universal Catholic Church, will lead to a frequent resort to 
the rules and practical regulations of That law. Among these 
are the lules which relate to the framing of the presetrrn mt. 

A presentment ought always to commence with a distinct 
statement of what the offence is, and where it is a breach of 
any express canon, it should be as nearly as pos-ibie in the 
language of the canon. "What is termed the prasertim (and 
especial!?/) in an article, is always construed as setting forth 
the nature of the principal charges : the general words only 
include subordinate charges ejusdem generis. (3 Hag., Rep. 25.) 

There is another very important characteristic of the Arti- 
cles of the canon law, which distinguishes them from the pro- 
ceedings of other systems. They may comprise numerous differ- 
ent and distinct charges if the offences are ejusdem generis. 
The authorities cited show that this may be done even under 
the general words, if the other offences are of the same 
character as those specified. I am inclined to think also, that 
offences of a dissimilar nature may be comprised in the same 
presentment, but they must be specifically alleged. In Bur- 
g-oynevs. Freer, the articles comprehended charges for drunk- 
enness, lewd and profligate life and conversation, and neglect of 
divine services on divers Sundays. 1 So far as the analogy of 
the criminal law applies, the rule appears to be that in cases 
of felony, if two or more distinct offences are contained in the 
same indictment, it may be quashed, or the prosecutor driven 
to an election. But in misdemeanors several distinct orlences 
may be joined. 1 

1 2 Addams. 414. The articles are stated at length in Cootks' Pro. 
158. 
*8 Wendell's Rep. 211. Ki.ic vs. The People. 



404 MODE OF TRIAL. 

It is also presumed, that the general rule which is to be 
found in every form of pleading under every system, would 
be adhered to under a presentment, viz: that the testimony 
could not go to matters not stated in the allegations. The 
maxim of the civil law is, Quicquid deponitur extra Articu- 
lutn, deponrtur extra Legem, and the principle of this maxim 
finds a place in every code. 

By the regulations of several dioceses before stated, the 
presentment is to be passed upon by the Bishop or standing 
committee, and approved before any steps are taken under it. 
Undoubtedly it is the duty as well as right of the Bishop, or 
committee, to see that ths presentment is proper both in form 
and substance. By the canon of New- York, it may be dis- 
missed, or amended. 

§ 2 - In almost all the dioceses the tribunal for the 

Board or ^ x \q\ f offences, is constituted separately for each 

(yOT T T£T OR 

Triers case - Indeed, I believe that in Maryland alone is 
there a permanent court established. 

I proceed to state the regulations in a number of the dio- 
ceses in which the first mentioned system prevails. 

In Massachusetts, the canon (2d of 1846,) provides that 
the Bishop shall as soon as may be, cause a copy of the pre- 
sentment to be served on the accused, and shall also nominate 
nine presbyters of the diocese, entitled to seats in the conven- 
tion, and not being parties to the presentment, nor witnesses 
in the cases, and shall cause a list of their names to be served 
on the accused, who shall within thirty days after such ser- 
vice, select five of them and notify their names in writing to 
the Bishop, and if he shall not give such notification within 
that time, the Bishop shall select five who shall form an eccle- 
siastical court for the trial of the accused. 

The canon of South Carolina, directs as follows : " A pre- 
sentment being made, the Bishop shall proceed, from among 
those entitled to a seat in the convention, other than the 



MODE OF TRIAL. 405 

members of the standing committee, to designate twelve pres- 
byters, and cause a list of their names and a copy of the pre- 
sentment to be furnished to the accused, or left at his usual 
place of abode, if he be not found. Within thirty days there- 
after, the accused shall select five of the twelve presbyters and 
give notice thereof to the Bishop, and in case of his failure to 
do so, the Bishop shall select five ; and in either case, the se- 
lected presbyters shall constitute a council for the trial of the 
accused. 

The regulation in New- York, and Western New- York, is 
as follows : A presentment being made, the Bishop, if the facts 
charged shall not appear to him to be such as to constitute an 
offence, may dismiss it, or if it alleges facts, some of which 
do, and some do not, constitute an offence, he may allow it in 
part, and dismiss the residue, or he may permit it to be 
amended. When it shall be allowed in whole, or in part, the 
Bishop shall cause a copy of it to be served on the accused, 
and shall also nominate twelve presbyters of this diocese en- 
titled to seats in the convention, and not being parties to the 
presentment, and cause a list of their names to be served on 
the accused, who shall within thirty days after such service 
select five of them and notify their names to the Bishop, and 
if he shall not give such notification to the Bishop within said 
thirty days, the Bishop shall select five, and the presbyters so 
selected shall form a board for the trial of the accused, and 
shall meet at such time and place as the Bishop shall direct, 
and shall have power to adjourn from time to time, and from 
place to place, (but always within this diocese,) as they shall 
think necessary. 

With some variations, not material except as to the num- 
ber of triers, these regulations prevail throughout the several 
dioceses. In Missouri, the Bishop appoints three presbyters to 
constitute the court. I find no provision for a selection by 



406 MODE OF TRIAL. 

the accused out of a larger number. There is a provision for 
a new trial. 

In Wisconsin, the regulation is the same as to the num- 
ber and as to a revision. In Florida, the Bishop, or the clerical 
members of the Standing Committee, appoint three presbyters. 

In Illinois, the Bishop is to preside upon the trial, and not 
less than three, nor more than five presbyters shall be his 
assessors to try the facts in issue. They are to be selected 
out of a list of eight to be furnished by the Bishop, and if the 
accused refuse, the Standing Committee shall make the se- 
lection. If there be no Bishop, or he decline sitting on the 
trial, the Standing Committee shall designate some one mem- 
ber of the court to preside in his stead. {Canon 14, 1847.) 

In Ohio, the Bishop nominates eight presbyters, and the ac- 
cused chooses five. In other particulars, the regulations are 
almost identically the same as in New- York. In G-eorgia, the 
Bishop, or in case of a vacancy, the Standing Committee, 
nominates five presbyters, and the accused chooses three. In 
North Carolina, the Bishop appoints three, who constitute a 
board. And in Connecticut, the Bishop is to summon nine 
presbyters, five of whom shall constitute the court. If more 
than five attend, the accused may object to any individual 
over that number in his discretion. 

I have before observed, that I believe the only diocese in 
which a permanent court is established, is that of Maryland. 
In the note I have set out the canon in full. 1 

1 Canon VIII. Of Ecclesiastical Courts. — "There shall bean Eccle- 
siastical Court for the diocese of Maryland, to try such charges as may 
be preferred against any priest or deacon of said diocese. It shall be 
composed of seven presbyters, not members of the Standing Commit- 
tee. They shall be appointed by the Bishop, by ami with the advice 
and consent of a majority of the diocesan convention, and shall con- 
tinue in office until others shall have been chosen in their places, 
unless sooner removed by a vote of the convention. The Bishop, by 
and with the advice and consent of the majority of the convention, 
shall have power to fill all vacancies which may occur by such removal, 



MODE OF TRIAL. 407 

The method of proceeding before a court or g 3. 
board of triers, is very similar in all the dioceses. Mope of pro- 
I select the canons in two of them. Ohio and New- CEEDING - 
York, as sufficiently exhibiting it. 

The Sth section of the canon of Ohio is this. "When the 
board proceed to trial, they shall hear such evidence as may 
be produced, which evidence shall be reduced to writing by 
the secretary, and signed by the witnesses respectively ; and 

or by death, resignation, removal from the diocese, or election into the 
Episcopate or Standing Committee. Whenever a charge or charges 
against any priest or deacon of this diocese shall have been reduced to 
writing by the Church advocate, agreeably to the provisions of the 
canons, it shall be his duty to deliver to the Bishop two copies of the 
same signed by his own hand. It shall then be the duty of the Bi?hop 
to transmit to the accused one of such copies, together with notice of 
the time and place of trial, both of which the Bishop shall prescribe- 
The charges and notice shall be delivered to the accused, or left at his 
place of abode at least thirty days before the time appointed for t tie 
trial. The Bishop shall also issue a precept directed to all the mem- 
bers of the Ecclesiastical Court, requiring them, or any five or more of 
them, to proceed to the trial of the accused at the prescribed time and 
place, which precept, together with another copy of the charges signed 
by the Church advocate, shall be transmitted by the Bishop to the 
president of the court, whose duty it shall be, upon receipt of the same, 
to cause all the members of the same to be summoned to meet at the 
prescribed time and place ; any five of them, who shall attend in pur- 
suance of such summons, shall constitute the court. It shall be the 
duty of the members of the court to convene at a time and place to 
be appointed by the Bishop, and elect from their body a president and 
secretary. It shall be the duty of the president, within five days 
after such election, and after every change in the office of a 
president, to notify the Bishop of the name of the person chosen 
president." 

By Canon VII.. whenever it shall be determined to bring to trial 
any clergyman, the Bishop shall appoint one person as Church advo- 
cate, whose duty it shall be to prepare the charges, and conduct the 
trial on the part of the Church. 

He shall conduct the case with a single eye to eliciting the truth, 
and shall regard himself as much bound to protect the interests of the 
accused, except in matters merely technical, as those of the Chu 1 h. 
The Church advocate shall be considered the party on one side, and 
the accused on the other. 



408 MODE OF TRIAL. 

some officer authorised by law to administer oaths may, at 
the desire of either party, be requested to administer an oath 
or affirmation to the witnesses ; and the examination of wit- 
nesses, and all the proceedings, shall be in public, if desired 
by the accused. 

Application being made to the Bishop by either party set- 
ting forth satisfactorily that any material witness cannot be 
procured, upon the trial, the Bishop may appoint some clergy- 
man or layman to act as commissioner to take the testimony 
of suoh witness ; and the party applying as above shall give to 
the other party at least five day's notice of the time and place 
of taking such testimony. And if the person or persons on 
who in the notice is served, reside more than forty miles from 
the place of examination, an additional day's notice, exclusive 
of Sunday, shall be given for every additional twenty miles of 
the said distance. And both parties may attend and examine 
the witness, and the questions and answers shall be reduced 
to writing, and signed by the witness, and shall be certified by 
the commissioner, inclosed under his seal, and transmitted to 
the Board, by which it shall be received in evidence. A wit- 
ness examined before such commissioner may be sworn or 
affirmed in manner aforesaid. 

The 7th section of the 16th canon of "Western New- York, 
and the 8th of canon 17, of New- York, are precisely the same as 
that of Ohio, except that in the latter, the Secretary is to re- 
duce the testimony to writing. Section 8 corresponds with 
the 9th section of Ohio. The 5th and 6th sections of canon 
2, of Massachusetts are also almost identical. 

Under canon 4, (1825,) of Connecticut, at the time fixed 
for the trial, the members of the court shall choose a president 
from their own number, and a secretary from their own num- 
ber or otherwise, as they shall see fit, and they shall before 
they proceed, adopt and declare the rules by which the trial 
shall be conducted. 



MODE OF TRIAL. 409 

There are provisions also in most of the dioceses for an ad- 
journment from time to time, and place to place, within the 
diocese. (§ 2 of Massachusetts, &c.) 

There is also a provision as to organization of the court at 
the first meeting, which in Western New-York, is this. 
If at the time appointed for the first meeting of the board, the 
whole number of five shall not attend, then those who do attend 
may adjourn from time to time ; and if after one adjournment, 
or more, it shall appear to them improbable that the whole 
number will attend within a reasonable time, then those who 
do attend, not being less than three, shall constitute the 
board and proceed to trial, and a majority of them shall decide 
all questions. By the analagous clause in Massachusetts, the 
decision to be binding, must be unanimous. 



In Massachusetts, advocates shall be allowed on § 4 - 
both sides at the pleasure of the parties, provided 
they are clergymen canonically resident in the diocese, or lay- 
men, who have been communicants of some parish of the same, 
at least two years before the time of trial. 

In Connecticut, no layman shall advocate for either party 
on the trial, though both parties may at their option employ 
and consult legal or other advisers. (Canon IV. 1825.) 

The regulation in Ohio is precisely the same. In New- 
York and Western New-York, the accused shall have the privi- 
lege of appearing by counsel ; in which case, and not otherwise, 
they who present shall have the like privilege, which counsel 
shall in all cases be members of the Protestant Episcopal 
Church. In Maryland, the accused shall have a right to 
call in any one person to assist him. The Church advocate 
conducts the prosecution. The regulation in Missouri is the 
same as in New-York, except that the counsel must be com- 
municants of the Church, not members merely, (Canon L2, 
$ 9.) And in Mississippi, advocates or proctors shall be allowed 



410 MODE OF TRIAL. 

on both sides, provided they are clergymen canonically resi- 
dent in the diocese, or laymen communicants of some parish 
of the same at least two years before the trial. 

I have before stated the canon of Maryland constituting 
a Church advocate for carrying on the prosecution. In South 
Carolina also there is a provision of a similar nature. The 
standing committee, by their president, or some one whom 
they shall appoint to perform the office, shall collect and pre- 
sent evidence in support of the accusation, and otherwise ap- 
pear in behalf of the prosecution. (§ 5, Canon 3, Journal 
1844.) 



§ 5. By the second section of the 5th Canon of 1835, 

Notice, Cita- it is directed, that " unless a State Convention shall 
tions, bERvicE. otherwise provide, a citation to any minister to 
appear at a certain time and place for the trial of an offence, 
shall be deemed to be duly served upon him, if a copy thereof 
is left at his last place of abode, within the United States, 
sixty days before the day of appearance named therein ; and 
in case such minister has departed from the United States, 
by also publishing a copy of such citation in some newspaper 
printed at the seat of government of the state in which the 
minister is cited to appear, six months before the said day of 
appearance." 

A copy of the presentment is by the rules of all the 
dioceses, to be served upon the accused within a limited time 
before further proceedings are taken. This varies ; but in 
general thirty days is assigned for this purpose. 1 In Pennsyl- 
vania a copy is to be served by a summoner. 

s 6 By the sixth section of the canon of New York, 

Refusai or if the clergyman presented, after having due no- 

neglect tice, shall not appear before the board of presby- 

to appear. | erg appointed for his trial, the board may never- 

1 So in Massachusetts. South Carolina. New-York and various other 
dioceses. 



MODE OF TRIAL. 411 

tbeless proceed as if he were present, unless for good cause 
they shall see. fit to adjourn to another day. The rule in New 
Jersey is precisely the same. (Canon 13, 1837.) 

By Canon 11 of Maryland, if any clergyman accused of 
any offence shall neglect to attend at the time and place 
appointed, the court shall report the fact to the Bishop, who 
shall suspend such clergyman from the ministry for contumacy 
until he shall appear and demand a trial. If he apply to the 
Bishop within six months, a court shall be convened, and the 
trial proceed in the manner provided for in the canons. If he 
shall not apply within six months, the Bishop shall pronounce 
sentence of degradation upon him. 

By Canon 12. if a clergyman is charged with wilfully dis- 
continuing the ministry, or with separating himself from her 
communion, and shall, after being duly notified of the time 
and place of trial, neglect to appear, the court may hear the 
case in his absence : and if a majority shall find him guilty, 
may report to the Bishop as if he had appeared ; and the 
Bishop shall proceed to pass sentence. 

In Connecticut, if the accused shall neglect or refuse to 
appear or answer, the court shall order judgment to be rendered 
against him by default. [Canon 4, 1825.) 

By section 4 of Canon 2 of Pennsylvania, the neglect to 
appear is punishable with a suspension for six months, and if 
the party does not within that time apply for a trial, he is to 
be degraded. The canons of Missouri and Wisconsin are pre- 
cisely the same. 

In Ohio, the Board of Triers upon such neglect are to re- 
port the contumacy to the Bishop, and sentence of suspension 
from the ministry shall pass upon the party: such sentence 
to be reversed if he appear and ask a trial in three months j if 
he do not. the Bishop may, if he think proper, pass sentence 
of degradation upon him. 

The provision in South Carolina is substantially the sa 



412 MODE OF TRIAL. 

§ 7. If on or during the trial, the accused shall con- 

Confession. f ess the truth of the charges contained in the pre- 
sentment, the board may dispense with hearing further evidence, 
and may proceed at once to state to the Bishop the sentence 
which they think ought to be pronounced. (Canon 13, § 6, 
New Jersey.) 

The regulation in New-York is, that if a clergyman shall 
confess the truth of the facts alleged in the presentment, the 
Bishop shall proceed to pass sentence ; and if he shall not confess 
them before the appointment of a board for his trial, he shall be 
considered as denying them. 

In Virginia and South Carolina the regulation is this — 
" if at any time the accused shall confess the truth of the 
charges, the Bishop (such confession being made to him or 
certified to him by the council) shall proceed to pass sentence. 
In Illinois, if the clergyman, at any time before the com- 
mencement of the trial, confess the facts charged in the pre- 
sentment, the Bishop shall proceed to pass sentence; other- 
wise he shall be considered as denying them. (Canon 14, 
Journal 1847.) The provision in Ohio is the same in sub- 
stance. (Canon 6, Journal 1847.) 

In Pennsylvania, if the clergyman presented confess the 
truth of the facts alleged in the presentment, the court shall 
in writing certify the same to the Bishop, and state their 
opinion as to the sentence that ought to be pronounced : and 
it shall be the duty of the Bishop to proceed and pass sen- 
tence. (Canon 2, § 4.) 



§ 8. The provision as to the publicity of a trial is 

Publicity of substantially the same in South Carolina and Vir- 
trial. ginia, viz : that it shall be in public if desired by 
the Standing Committee or the accused. The Standing Com- 
mittee, it will be rememberer, is the prosecuting party. In 
Delaware, the regulation is this: "All trials, whether of 



MODE OF TRIAL. 413 

clergymen or laymen, shall be in public if the accused party 
so require, unless the judicatory are of opinion that such 
publicity will occasion unholy scoffing, and be contrary to 
edification. When a public trial is refused, the accused may 
have present six male communicants of the church, and the 
party presenting or prosecuting may have the same number 
present." 

In the diocese of Florida no charge can be sub- § 9 - 
stantiated on the testimony of less than two wit- NuMBEE 0F 
nesses. The same rule prevails in North Caro- 
lina, 1 and also in Maryland, with the addition of the clause, 
" or upon the oath of one witness, whose testimony is corrobo- 
rated by pregnant circumstances." I have not found a simi- 
lar provision in any other diocese. 

In relation to the judgment, the provisions of § 10. 
the various dioceses differ but little. I annex the Decisiox > or 

JUDGMENT. 

canon of Massachusetts of lb4o. 

The court, having deliberately considered the evidence, 
shall declare in writing, signed by them or a majority of 
them, their decision on the charges contained in the present- 
ment, stating whether the accused is guilty or not guilty of 
such charges respectively, and also stating the sentence which, 
in their opinion, should be pronounced ; and a copy of such 
decision shall be without delay communicated to the accused ; 
and the original decision, together with the evidence, shall be 
delivered to the Bishop, who shall pronounce such canonical 
sentence as shall appear to him to be proper, provided the 
same shall not exceed in severity the sentence recommended by 
the court ; and such sentence shall be final. Before pronouncing 
any sentence, the Bishop shall summon the accused, and any 
three or more presbyters of the diocese to meet him, at such 
time as may, in his opinion, be most convenient, in some 
church to be designated by him, which for that purpose shall 

1 Journal 1847. 
27 



414 MODE OF TRIAL. 

be open to all persons who may choose to attend, and the sen- 
tence shall then and there be publicly pronounced by the Bishop. 

The Bishop, if he is satisfied that justice requires it, may 
grant a new trial to the accused, in which case a new court 
of presbyters shall be appointed, the proceedings before whom 
shall be conducted as before mentioned. 

The 9th section of the canon of the diocese of Western 
New-York, the 9th of that of New- York, and the 10th section 
of that of Ohio, are almost precisely like that of Massachusetts. 

In Maryland, the 13th canon (1847) is as follows :' 

If the accused, after a canonical trial, shall be found 
guilty by a canonical majority, the opinion of the court, to- 
gether with all their proceedings, including the testimony taken 
in the case, shall be transmitted to the Bishop before it is 
transmitted to the accused, or in any way made public. The 
court shall also declare to the Bishop the punishment which, 
in their opinion, the offence or offences deserve. Should he 
concur in opinion with the court, he may proceed to reprove, 
suspend, or degrade, as the offence may be thought by him to 
deserve, always provided that he shall inflict no punishment 
beyond that recommended by the court. 

And by the 14th canon, the promulgation of the sentence 
is to be as follows : All sentences of reproof, suspension or 
degradation, shall be pronounced by the Bishop. A copy of 
the sentence of suspension shall be sent to the accused, and 
another to the vestry or vestries of the parish or parishes, or 
congregation or congregations with which he may be canoni- 
cally connected, and such other publicity may be given to it 
as the Bishop shall think expedient. A sentence of degrada- 
tion shall be made known in the manner directed by Canon 
39 of the G-eneral Convention of 1832. 

I find it provided in the diocese of Florida and in that of 
North Carolina, that the decision of the court for conviction 
must be unanimous. (Canon 2, N. Carolina, Canon 12, 
Florida.) 



OF SENTENCES. 417 

TITLE IV. 
OF SENTENCES. 

The Constitution has recognized three kinds of ecclesiasti- 
cal censure — admonition, suspension and degradation. It 
prohibits any but a Bishop from pronouncing either of them 
upon a Bishop, priest or deacon. 1 

They are also mentioned in the 37th canon of the General 
Convention. 

It may be useful in the first place to advert to 

J # BrpRIYATION. 

the sentence of deprivation, so familiar to the Eng- 
lish canon law, and to explain why the term is not found in 
our system. 

Although, by the third section of Canon 42 of the General 
Convention, in the case of great heinousness of offence, mem- 
bers of the Church may be proceeded against to the depriving 
them of all privileges of Church membership, yet this, what- 
ever it may be, refers to the laity, and only tc spiriti-al privi- 
leges or connection. 

In the rules and regulations adopted in New- York in 
1786, there was a provision that the penalties should be ad- 
monition, or suspension, or deprivation of office ; suspension 
not to be longer than one year, and in case of depriva- 
tion of office, an appeal might be had to the Greneral Conven- 
tion. 2 The phrase in this instance plainly means deposition. 

The sense of the term in the English law is, the exclusion 
from ecclesiastical possessions and profits, emoluments, and 
preferments. It affects all benefices and promotions, but not 
the ministerial character, nor the exercise of n 1 func- 

tions. It therefore assumes, and is correlative with the pos- 
session of a benefice, or some emolument or profit annexed to 



the cure, or the station of clerk 



1 Constitution. Article 6. 

2 Journal N. F., p. 16. 



. 3 



3 Deprivation is an ecclesiastical censure wher yman is 

deprived of his benefice. (Grey's System, p. 407.) ' ! >rk is an 



418 OF SENTENCES. 

Although the term benefice is to be found in many of the 
older canons of Yirginia, yet it is not applied in the technical 
sense of the English law, but merely, I apprehend, to the ordi- 
nary emoluments of an incumbent. The beneficed clergy- 
man seems, indeed, only to mean one having charge of a 
parish. 

But I do not see, that wi^h a view to the point now dis- 
cussed, there is any distinction between the benefice in Eng- 
lish law, and the right of a minister to the salary and emolu- 
ments attached to a rectorship. The former is fixed by dona- 
tive or law, the latter is usually adjusted by agreement of the 
parties. There are also many cases in which a fund is given 
by will or gift for the special support of a rector for the time 
being of a particular church. 

I apprehend that the omission in our canons has arisen 

abstract of the Codex. See also Burns, by Phillimore, vol. 2. p. 141. 
c: Deprivation is an ecclesiastical censure, whereby a clergyman is de- 
prived of his parsonage, or other spiritual promotion or dignity." 

The case of Dr. Pechell (11 State Trials, p. 1339) was one in which 
the delinquent was deprived of his Vice Chancellorship of Cambridge, 
and suspended from his Mastership during the king's pleasure. Clew's 
case (1 Hagg. Cons. Rep., Appendix A) and Rich's case (Ibid., p. 8) are 
examples of a sentence of deprivation solely. 

In Stone's case, (l Hagg. Rep., 424.) Lord Stowell, after delivering 
his opinion, said, that the canons of the Church had provided, that 
when sentence of deprivation is to be passed it must be by the Bishop. 
The Bishop of London was then introduced, and took the judge's chair. 
He was informed of the offence, &c, and stated he had read the depo- 
sitions, and pronounced the sentence of deprivation. 

In Mr. Coote's late work (1847) on the practice in the Ecclesiastical 
Courts, (p. 243,) is the form of the sentence of deprivation, pronounced 
in Kelson vs. Loftus, Michs. Term, 1845, Arches. It runs thus : 

"We, therefore, do hereby pronounce, decree and declare, that the 
said the Rev. A. Loftus ought by law to be deprived of all his ecclesias- 
tical promotions within the province of Canterbury, and especially of the 
vicarage of, &c, &c, and of and from the glebes, tithes, rents, salaries, 
and all other ecclesiastical dues, rights and emoluments belonging and 
appertaining to his said ecclesiastical promotions, and we do deprive 
him of them accordingly by this our definitive sentence and final decree.' 7 



OF SENTENCES. 419 

from the adoption of the principle, that it was not competent 
for our Church tribunals to adjudge directly upon rights of 
property, real or personal ; that the civil courts were alone 
proper for this duty ; and thus we have extended the rule of 
the English law, under which, when property was in question, 
the common law courts to a great extent superintended and 
controlled ecclesiastical proceedings. 1 

By many of the ancient canons admonition was §1. 
always to precede suspension. The rule, however, Admonition. 
does not now prevail in England. In the case of a layman it 
is required by the canon of Maryland. 

Still for certain offences, admonition is in practice the first 
censure. Thus in the case of Pullen vs. Clewer, (l>t Add. 
Rep. Appendix, p. 4,) the offence being a neglect of duty, the 
party was admonished ; then again admonished sub poena sus- 
pensions ; afterwards he was suspended, and finally deprived. 
In Barnes vs. Shore, (1 Rob. Ecc. Cases, 399,) the judge 
said that from the frame of the articles and the circumstances 
of the case, he could go no further than admonition to the 
accused to refrain from a repetition of the offence. It was 
reading prayers, &c, in an unconsecrated chapel without 
license. And so in Taylor vs. Morley, (1 Curteis, 470,) where 
the Bishop had revoked a license before granted to preach in a 

1 See upon this subject the paper called Articuli Cleri in Lord 
Coke's 2d Institute, p. 601 ; also an abstract of Justice Foster's Tract 
upon the Doctrine of Bishop Gibson, 2 State Trials, p. 156. It is ad- 
mirably said by Dr. Burns, after adverting to the contests between the 
courts Christian and of common law: "It is the glory of the present 
age that these ferments have at length subsided. Persecution hath 
departed to its native hell, and fair benevolence hath come down from 
heaven. The distinctions which were introduced during the plenitude 
of papal power have fallen away by degrees, and we shall naturally re- 
cur to the state wherein Popery took us up, in which there was no 
thwarting between the two jurisdictions, but they were amicably con- 
joined, affording mutual help and ornament to each other." (Vol. ii., 
p. 52.) 



420 OF SENTENCES. 

York. 1 The question might arise in either of those dioceses ; 
and indeed, though with more difficulty of decision, in any 
diocese. It may therefore be useful to add a very strong au- 
thority to those which were referred to by the standing com- 
mittee of New- York in justification of their course. 2 

The canon of 1847, requiring that a sentence of suspension 
should express the terms or period of its expiration, had been 
adopted in principle by a canon of Wisconsin in the month of 
June in the same year, and it accorded with the practice, if 
indeed it was not the law of England.* 

r 5 Canon 9 of Pennsylvania, § 3. Article 7, of Constitution of Wis- 
consin — " When there is no Bishop, or he is incapable of acting, the 
standing committee shall be the ecclesiastical authority of the diocese 
for all purposes declared in the constitution." By the 7th canon of 
Missouri, in case of a vacancy of the episcopate, the powers and duties 
to be performed by a Bishop in matters of discipline shall be performed 
by the standing committee, except such powers and duties as are, or 
may be specially delegated to the clerical members thereof. 

2 The authority is that of Bishop Stillingfleet, who appears to me 
the most clear and able writer upon these subjects I have consulted 
It is contained in his letter to the Bishop of London on the right of 
jurisdiction during the suspension of the Archbishop of Canterbury^ 
dated August, 1689. The question was, whether the jurisdiction had 
devolved upon the Dean and Chapter of Canterbury. The Bishop, after 
showing that in case of a legal vacancy, the right belonged to them? 
says — " The canonists make the case to be the same in an interpreta- 
tive as in a real vacancy. Parnormitan lays down this for a rule : 
u Episcopo mortuo naturaliter vel civiliter capitulum succedit in jurisdic- 
tione spiritualium quam tempo raliumP He notices a decretal settling the 
question iu case of captivity, and quotes the Gloss, as follows. " Et sic 
nota quod sicut capitulum cum vacat Ecclesia. supplet viccm Episcopi in 
jurisdictione , sic et cum quasi vacat. v 

s Amid the profusion of learning with which the question of suspen- 
sion was discussed in the General Convention of 1847, less attention* 
it appeared to the author, was given to the English authorities than 
they deserved. I will but glance at some of them, partly as matter 
of historic curiosity, and partly that they are applicable to the question 
of the effect of a suspension upon rights to salary, &c. There is a 
copious note in Lynwood upon the subject. (De Const. Lib. 1, Tit. 2, 
verbo suspensionis.) The various kinds of suspension known to the 



OF SENTENCES. 421 

Mr. Coote in his late work upon ecclesiastical practice has 
made a collection of the cases in which sentence of suspension 

canon law, (24 in number) are stated. The English law knows but 
four at the extent. Ab officio, ab beneficio — from the two combined; 
and ab ingressu ecclesice. Among the many points discussed, is 
one whether a sentence of suspension simpliciter, was or was not 
a sentence from both office and benefice. That point was distinctly 
settled in Rowland v. Jones, (2 Lee's Rep. 191 ; ) viz: that such a sen- 
tence always means suspension ab officio only. 

In the Gloss of John of Athon, upon the constitution of Otho, (de 
con. cler. verbo suspensi.) the general doctrine, which is quoted and 
adopted by Gibson and Burns, is thus stated — " Ad majorem evidentiam 
scias, quod depositus dicitur qui privatus est beneficio et officio licet non 
soleniter ; degradus dicitur qui ruetroque est privatus . soleniler insignis sibi 
ablatis. Suspensus autem dicitur. qui est privatus utroque ad ternpus. non 
in perpetuum. Secundum quosdam. differentia est inter Devositinnem et 
suspensionem sicut inter Deportationem qua est perpetua, et Relegationem 
qua est temporalis.''' 

In the second Disputation of Strykius, (cap. o. 23.) we find an ex- 
planation of these terms. Relegation was banishment from a city or 
province for a denned or an undefined period, but retaining all civil 
privileges and right of property. Deportation was necessarily perpetual, 
and involved the loss of civil rights and privileges. In chap. 6. p. 28, 
of the same Disputation it is stated, that some authors hold that where 
a Relegation is decreed without fixing a period, it is to be understood 
as lasting for ten years. The commentator remarks that this must de- 
pend upon the nature of the crime which caused the sentence. All 
this is very vague and very unsuitable to the genius of English law, 
exacting scrupulous precision in all sentences. 

The work of Van Espen contains a very full article upon the nature 
of this censure. Juris : Ecclesiastici Universi. Pars. 3, cap. 10. The 
20, 21, and 22d clauses are very explicit. Cujuscunque natures aut 
extensionis sit suspensio, certum est quod tantum ipsum clericum ab 
officio vel beneficio suspendat : id est impediat quo minus suo officio 
libere fungatur. functionesve ei annexas exerceat, aut emolumentaper- 
cipiat : nequaquam autem ipsum privet officio aut beneficio. 

Hinc ipsa suspensio quamvis ad nullum certum durationis terminum 
limitata sit, niholominus ex se denotat quandam remissibilitatem et 
spem restitutionis : eo quod officium et beneficium clerico suspenso in- 
tegrum relinquat. 

Ex his quoque manifesta est differentia inter simplicem suspen- 
sionem et depositionem. Hsec enim non tantum ab executione officii et 
beneficii suspendet clericum, sed absolute deponet, atque officio et be- 



422 OF SENTENCES. 

has been pronounced, with the nature of the offence. It may- 
be in several respects useful, and I have copied it in the note. 
That note also contains the form of a sentence declared in the 
case of the Rev. John Hurst, in 1845. 1 

neficio absolute privat, titulum que auffert ; in tantum ut sine nova 
collatione et titulo ad officium vel beneficium redire nequeat. 

Every sentence of suspension to be found in the reports of English 
decided cases since the commencement of the time of Sir George Lee, 
is for a definite period, or on definite terms. 

1 For profligacy of life and conversation, fornication and inconti- 
nence, suspension for three years, ab officio et beneficio, or deprivation 
of office. — Watson vs. Thorp, 1 Phill., 270. Pawlet vs. Head, 2 Lee, 
565. Trower vs. Hurst, Easter Term, Arches. 

Drunkenness, accompanied by profaneness, &c, suspension ab offi- 
cio et beneficio for three years. — Saunders vs. Davies, 1 Add., 291. 
Burder vs. Spear. 1841, Arches. Binder vs. Jenkins, Trinity Term, 1838. 
Bishop of London vs. Day. Michaelmas Term, 1845. Drunkenness, not 
aggravated by other circumstances, suspension ab officio for twelve 
months. — Rowland vs. Jones, 2 Lee, 191. 

For advisedly maintaining or affirming doctrines contrary to the ar- 
ticles of religion, &c, suspension ab officio et beneficio, or ab officio mere- 
ly. — Bishop vs. Stone, 1 Hagg., C. R., 424, 434. Saunders vs. Head, 3 
Curteis, 565. Hodgson vs. Oakley, Trinity Term, 1846, 1 Roberts, 
Eccle. Cases. For neglect of duty, suspension for three years from of- 
fice and benefice. Arger vs. Holdsworth, 2 Lee, page 515. Bennetvs. 
Borraker, 3 Hagg. Rep., p. 24. The material part of the sentence in 
the case of the Rev. John Hurst ran thus : tl That the said J. H. be sus- 
pended for the space of three years (from the time of publishing the 
sentence in manner after mentioned) from the discharge and execution 
of all the functions of his clerical office ; that is to say, from preaching 
the word of God, administering the Sacraments, and performing all the 
duties of such his clerical office in the said parish and parish church, 
and elsewhere in the said province of Canterbury, and from receiving 
any of the profits and benefits of the said rectory and benefice, that is 
to say, from receiving and taking the fruits, tithes, rents, profits, sala- 
ries, and the dues and emoluments belonging and appertaining to such 
rectory and benefice. And we order and decree, that at the expiration 

of said three years, the said shall exhibit and leave in the registry 

of this court a certificate under the hand of three beneficed clergymen 
in his vicinity, of his good behavior and morals during the time of his 
suspension, and such certificate be approved of by the court before 
such suspension be taken off or relaxed, and that such certificate be 



OF SENTENCES. 423 

There was a provision in a canon of Virginia in 1793, 
which I do not now find in force in any diocese. It was directed, 
that if a clergyman while under sentence of suspension should 
continue the exercise of the functions of the clerical office, on 
satisfactory proof thereof being made to the Bishop, or Stand- 
ing Committee if there be no Bishop, the sentence of degra- 
dation shall be passed upon him. 

It cannot be doubted that upon general principles he could 
be proceeded against for disobedience to, and contempt of, a 
sentence. If the services were rendered by consent of another 
minister, after the regular promulgation of the sentence, such 
clergyman would be also open to discipline. 1 



In the case of Fullen vs. Clewer, (1 Hagg. 

Suspension 
Rep., Appendix 3,) the judge having heard advo- PENDENTE LITE . 

cates, decreed that suspension pendente lite be 

granted ; and that a proper minister, to be approved by the 

filed and approved of, or the suspension shall continue in full force 
notwithstanding the expiration of the three years.' 7 It is this clause 
which Sir John Nicoll doubted, respecting its insertion in a sentence; 
and which witnesses on the record commission thought probably invalid. 
In Sanders vs. Head, 3 Curteis, 565, the sentence, after pronouncing 
a suspension from his clerical offices and the execution therefrom for 
three years, directed that a copy of the decree be certified into the Con- 
sistory Court of Exeter, in order that sequestration be there issued. 

In the case of the Rev. Cave Jones in New- York, 1812, the manda- 
tory part of the sentence was thus: " Now, therefore, according to the 
power vested in us by the 32d Canon of the General Convention of, 
&c, we do hereby declare that the Rev. C. Jones be suspended from 
the exercise of all ministerial duties, until he should retract such re- 
fusal and submit to the terms of the recommendation. And I, the said 
Right Rev. B. Moore, Bishop, &c, do suspend him accordingly ; and 
we, the said presbyters, as far as the said canon may require, do con- 
cur in the same." 

1 See Van Espen, Jour. Ecc. TJn., pars. Ill, cap. x., § 23. Tametsi 
clericus ab ordine suspensus non privetur absolute suo ordine, nihilomi- 
nus si durante suspensione exerceat functiones sui ordinis, a quo sus- 
pensus est, sit irregularis. 



424 OF SENTENCES. 

Ordinary, be appointed, and the profits of the vicarage be se- 
questered. 

In a rule of order in Virginia, in 1785, it was provided, 
that the salary accruing during the suspension of a minister 
or deacon who is afterwards found guilty, shall go to the 
vestry for the use. of the church. (Hawks' Contr., Appendix 
10; Ibid., 25, 1787.) 

By a canon of Mississippi, adopted in 1847, it is enacted, 
" The Bishop, with the advice of the Standing Committee, 
shall be empowered to suspend from the functions of the min- 
istry, any minister who shall be charged with improper, irre- 
ligious, or immoral conduct ; and this suspension shall be 
continued until the disposal of the charges against him by a 
canonical trial, unless the Bishop and Standing Committee 
are satisfied, from testimony laid before them, of a thorough 
reformation of his life. Provided, that no minister shall be 
suspended until he shall have been notified by the Bishop or 
Standing Committee of the nature of the charge against 
him." 

In the bill proposed to Parliament, in February, 1848, there 
was also a provision upon this subject ; and the 14th section 
of the statute, 3d and 4th Victoria, directs that where from 
the offence charged it shall appear, that great scandal is likely 
to arise from the party continuing to perform the services, 
while the charge is under investigation, or that his ministra- 
tion will be useless while such charge is pending, the Bishop 
may inhibit him from performing any services within the dio- 
cese after the expiration of fourteen days after service of a 
notice ; such inhibition to continue until sentence shall be 
given. 

The accused party may nominate a person to the Bishop to 
supply his place during the suspension, and if he omit it, the 
Bishop may do so, and in all cases he may assign a stipend 
not exceeding a moiety of the net annual income of the bene- 



OF SENTENCES, 425 

lice ; and may provide for the payment of such stipend, by se- 
questration if necessary. The Bishop may at any time revoke 
either the inhibition or the license. 

In 1 Term. Rep. 526. is a minute of an opinion of Sir E. 
Simpson, king's advocate and judge of the admiralty, to the 
effect, that if a clergyman be suspended ab officio et beneficio^ 
and upon an appeal declared innocent, he shall recover the 
profits of his living. 

The possession of a benefice, &c, by sequestrators during 
a suit, was provided for in a constitution of John of Strat- 
ford, 1342. See it at length in the Codex p. 1113, with the 
Grloss of Lynwood. 

There is one question of no little moment and delicacy 
connected with this subject of suspension, and that relates to 
the salary Or emoluments attached to the office of a rector, ac- 
cruing during suspension. I speak of a suspension upon a 
sentence. 

The action of the General Convention in 1847, and as I 
consider, the whole force of the canon law recognized by us ? 
leads to the conclusion that a sentence of suspension, termi- 
nable on its face as it must now be. does not sever the con- 
nection between a minister and his parish — does not destroy 
his character as its rector, nor his right to the salary ; in short 
that the rule laid down by Yan Espen in the passage before 
cited, is the law of our Church. 

This difficulty was felt and met in the diocese of "Wiscon- 
sin. In June 1847, when a canon was passed requiring that a 
sentence of suspension should express its period of duration, 
or conditions of termination, another was adopted declaring 
that a sentence of suspension should ipso facto, sever the con- 
nection between the clergyman and his parish. {Canon 3, 
§ 9, 1847.) 

That this terminates all question so far as any Church en- 
actment can terminate it, is perfectly clear ; yet many objec- 



426 OF SENTENCES. 

tions will occur to the adoption of such a rule in general. At 
least, as it is entirely new, it deserves mature consideration. 
How can the matter be treated where no such regulation exists ? 
I have before observed, under the head Deprivation, upon 
the necessity, or at least policy of the Church, in avoiding in 
its sentences all action upon the rights of property connected 
with a clergyman's situation ; and upon the best consideration I 
can give the subject, it appears to me that a convention may 
enact to this point, and no farther. It may provide that during 
the existence of a sentence of suspension, the Bishop may, with 
the consent of the suspended party, assign the profits of the 
cure or any part thereof for the support of a clergyman to of- 
ficiate during the period ; and in case of a refusal to give such 
consent, may proceed to degrade the suspended party. Thus 
there would not be the shadow of a pretence of interference 
w 7 ith the province of the civil tribunals to adjudicate directly 
upon the matter. 

[Canon 39. General Convention 1832.] 

§3. "Whenever any minister is degraded from the 

Degradation, holy ministry he is degraded therefrom entirely, 
and not from a higher to a lower order of the same. Deposi- 
tion, displacing, and all like expressions are the same as degra- 
dation. No degraded minister shall be restored to the ministry. 

" Whenever a clergyman shall be degraded, the Bishop 
who pronounces sentence shall, without delay, give notice 
thereof to every minister and vestry in the diocese, and also 
to all the Bishops of this Church ; and where there is no Bishop 
to the Standing Committee." 

The former canons were the 3rd of 1792 and 27th of 1808. 

By that of 1792 (and that of 1808 was precisely the same) 
whenever a clergyman shall be degraded agreeably to the 
canons of any particular Church in the Union, the Bishop who 
pronounces sentence, shall, without delay, cause the sentence 



OF SENTENCES. 427 

of degradation to be published from every pulpit where there 
may be an officiating minister throughout the diocese or dis- 
trict in which the degraded minister resided, and also shall 
give information of the sentence to all the Bishops of the 
Church, and where there is no Bishop to the Standing Com- 
mittee. 

I do not find that by the canon law, there was "any sub- 
stantial difference between deposition and degradation. By 
both, the clergyman was deprived of the holy orders which he 
once had. Dr. (xrey in his Epitome of the Codex says, " De- 
gradation is an ecclesiastical censure, whereby a clergyman is 
deprived of his orders. It is also called deposition from the 
ministry. There are two sorts of degradation by the common 
law — one summary by word or sentence only, the other 
solemnly by divesting the party of those ornaments and rights 
which be the ensigns of his order or degree. 

According to Papal, authors the Pope alone could re- 
store a degraded minister. (Molin^us, vol. 4, p. 796 ; Ibid., 
p. 187, on the Decretals.) If a presbyter is deposed from all 
his orders, the Pope alone can restore him. 

The sentence of degradation was formerly executed with 
great solemnity. Thus in the case of William Santre, prose- 
cuted for heresy in the 21st of Henry IY, a. d., 1400, (1 State 
Trials 163,) the sentence and mode of execution is set forth 
at length. The sentence by Thomas, Archbishop of Canter- 
bury, first declared the articles proven, and denounced the 
party as an heretic, and refallen into heresy. It then proceed- 
ed — " And by the conclusion of all our fellow brethren, fellow 
Bishops, prelates, council provincial and of the whole clergy, 
we, &c, do degrade and deprive thee of thy priestly order ; 
and in sign of degradation and actual deposition from thy 
priestly dignity, we take from thee the paten and the chalice, 
and do deprive thee of all power and authority of celebrating 
the masse, and also we pull from thy back the easule, and 



428 OF SENTENCES. 

take from thee the vestment, and deprive thee of all priestly 

power. And you, the said , being in the habit and 

apparel of a deacon, with the New Testament in your hands, 
we also declare thee, &o. ; and in token of thy degradation and 
actual deposition, we take from thee the book of the New 
Testament and the stole, and do deprive thee of all authority 
in reading of the gospel, and all and all manner of dignitie of 
a deacon." 

Similar forms were used in taking from him the insignia 
of an acolyte and reader. 

The sentence and degradation upon Archbishop Cranmer 
in 1553, is set forth at length in 1st State Trials, 842, 853. 
The whole formula seems to have been sent from Rome. It 
is very minute in the details, following him through all his 
offices, and degrading him from each successively, taking 
away from him some portion of apparel or emblem of his office 
at each step. 1 

In the case of the Rev. Samuel Johnson (11 State Trials, 
L348, a. d. 1666,) the sentence was, " that he should be de- 
prived of his rectory— that he should be a mere layman and 
no clerk, and should be deprived of all right and privilege of 
the priesthood — that he should be degraded thereof, and of all 
habits and vestments of the same." 

It is stated, that upon the execution of this sentence, 
when they came to the ceremony of putting the Bible into his 
hands, and taking it from him again, he was much affected, 
and parted with it with difficulty. 

After a careful search through the state trials and the 
reports in the ecclesiastical courts, I have not found an in- 
stance of a sentence of degradation formally executed since 
that of Mr. Johnson. 

1 There is a paper at the conclusion of this sentence drawn up by 
Winston, as to the authenticity of Cranmer's recantation, which, at 
least, makes a very plausible case against it. 



OF SENTENCES. 429 

In the case of Dr. Watson, Bishop of St. David's, (14 State 
Trials, p. 463,) the sentence was deprivation and degrada- 
tion, and in this the term depose is made use of. The sen- 
tence runs thus : " And the said Thomas "Watson, from his 
former dignity and station of the church of — — -, and from 
all Episcopal office and function, and from all ecclesiastical 
benefice, (justice demanding it,) we do by these presents de- 
prive, remove, and depose, commanding and interdicting him 
from hereafter wearing the habit of the Episcopal order, or 
the Episcopal emblems of authority." 

In the 122d canon of 1603, the term degradation is not 
found. The phrase is " deprivation from his living, or depo- 
sition from the ministry." 

In Clark vs. H ■, (Arches, 1 Robertson's Ecc. Rep.. 

379,) Sir J. Hurbert Furst, Official Principal, doubted whether 
he could pronounce sentence of degradation without the Arch- 
bishop ; that, according to Ay lift and other authorities, there 
ought to be a certain number of Bishops present. That the 
justice of the case would be answered by a sentence of depo- 
sition, which he could pronounce. " When a sentence is pre- 
sented to depose Mr. H. from the ministry, that is from all 
authority to officiate, I shall be ready to sign it." 

The following sentence was signed: " Therefore, we the 
said H. J. F., having maturely deliberated upon the proceed- 
ings had in this cause, and the offences sufficiently proved, 
exacting by law inhibition from the exercise of the ministry, 
and all discharge and function of his clerical office and the 
execution thereof within the province of Canterbury, have 
thought fit to pronounce, and do accordingly pronounce, de- 
cree and declare, that the said the Rev. H. ought by law to 
be inhibited from the exercise of the ministry, and from all 
discharge and function of his clerical office and the execution 
thereof — that is to say, from preaching the word of Grod and 
administering the Sacraments, and celebrating all other du- 



430 OF SENTENCES. 

ties and offices whatever within the province of Canterbury ; 
and we do strictly inhibit him therefrom under pain of the 
law and contempt of this our definitive sentence." See the 
sentence at length in Cook's Eccl. Prac, p. 245, who terms it 
an inhibitory sentence. 

I do not find the term inhibition in this sense used by any 
writer. The inhibition, which is a familiar term in ecclesi- 
astical practice, is the injunction from proceeding after an 
appeal, and issues from the judge ad quern. 



§4. This ecclesiastical censure, the mighty engine 

Excommuot- of papal dominion, and the most powerful instru- 
- CATI0N * ment for the restraint of the lawless, is not men- 
tioned in terms in any of our general canons. And Dr. Hawks 
observes, that no one ever heard of the excommunication of a / 
layman by our branch of the Apostolic Church. " The law 
is a dead letter. There is not a clergyman in the Church 
who, if he were desirous of excommunicating an offender, 
would know how to take the first step of the process." He 
is[speaking of the 42d Canon of 1832, § 3, as to the offences 
of members of the Church for which they may be deprived of 
all privileges of membership. 

Yet it can scarcely be doubted, that it was this sentence 
which the convention had in view when the section referred 
to was drawn up. 

In the rubric before the burial service the term is employ- 
ed, and the fact of the sentence having taken place is recog- 
nized. It directs the office to be used for all persons except 
those excommunicated, &c. 

And by the 23d Article, that person who, by open denun- 
ciation of the Church is rightly cut off from the unity of the 
Church, and excommunicated, ought to be taken of the whole 
multitude of the faithful as a heathen and a publican, until 
he be openly reconciled by penance and received into the 
Church. 



OF SENTENCES. 431 

Bishop Tomline says, " there was two sorts of excommu- 
nication, the greater and less ; by the former men were ex- 
cluded from partaking of the Eucharist, but they were allowed 
to attend the other parts of divine worship ; by the latter 
they were entirely expelled from the Church. The former 
was temporary, the latter perpetual, unless the delinquent 
gave full proof of his repentance. Most of the reformed 
Churches asserted the power of excommunication. It makes 
a part of our Church discipline, but has of late been rarely 
exercised." 

By the 3d canon of North Carolina, (1817,) it is provided, 
that the sentence upon a clergyman duly convicted upon trial 
may be, admonition, suspension, degradation from the min- 
istry, or excommunication, and shall be pronounced by the 
Bishop. This I believe is still in force. (Journal, 1844.) 

In Maryland also, by Canon 23 of 1847, as to the offences 
of a lay-communicant, the minister, wardens and vestry are 
to try the party, and if found guilty, the minister is to pro- 
nounce the sentence, which may be either reproof before the 
vestry and wardens, suspension from the Holy Communion, or 
excommunication. 1 

The sentence, then, is not unknown to our Church. In 
the case of laymen it may be proper, perhaps necessary, in 
order to exclude a repelled party from all communion in an- 
other diocese, if not in his own ; and in the case of a clergy- 



1 I have elsewhere (Title of Lay Discipline) submitted some re- 
marks upon this canon. Bat I suggest whether it is strictly correct 
to apply the term excommunication to an act done by a minister. The 
power to pronounce and to relax such a sentence is vested solely in a 
Bishop. I have, in the part above referred to, shown that the act of 
the minister under the rubric in the English Book of Common Prayer 
is merely suspensory. The Ordinary is to proceed to the decisive sen- 
tence. See also the Codex, p. 1095, Note 3, from which it appears 
that although a presbyter sometimes pronounces it, yet it is only by 
appointment of the Bishop to sit with a lay judge for the purpose. 



432 OF SENTENCES 

man, it may sometimes be- a necessary sentence, because it 
does not of course follow suspension or degradation. 

It was provided in many ancient constitutions, that if a 
person excommunicated in one city or diocese went to another, 
whoever received him to communion should be also excom- 
municated ; for which reason no strangers were to be admitted 
to communion until they showed their letters of recommenda- 
tion ; and this rule was adopted in the Council of London in 
1026/ 

If a clergyman officiated after excommunication he was 
by the canon lav/ to be deprived.' 2 

The lesser excommunication was chiefly used in cases of 
contumacy of court. It would be irrelevant to enter into the 
consideration of all the provisions by which the secular power 
aided the Church in the infliction of this sentence. (See 3 
Burns by Phillimore, p. 249.) It may be well to notice, that 
while by numerous canons and constitutions, excommunica- 
tion ipso facto is attached to an offence, yet a declaratory 
judicial sentence is absolutely necessary. The clause only 
serves to define the punishment. 3 In the note will be found a 
sentence pronounced by Bishop Seabury in 1793, in which 
what may be termed excommunication was united with a sus- 
pension. 4 A canonical regulation upon the subject is also 
submitted for consideration. 

1 Codex. 1045. By the 6th of the Canons of Antioch. if any one has 
been excommunicated by his own Bishop ; let him not be received by 
any other (unless indeed he be previously received by his own Bishop 
until a synod has met, and he having come before it and made his de- 
fence and satisfied the synod, has received a different sentence; an 
let this decision hold good with respect to laymen and presbyters ai 
deacons, and all who are reckoned among the clergy. See also 12 ar. 
13 of the Apostolical Canons. 

2 Codex, 1049. 3 3 Curtjeis' Rep., 840. 

4 SAMUEL, hy divine permission. Bishop of Connecticut and Rhode- 
Island, to the Clergy of the Church in Connecticut and Rhode Island. 
Greeting. 
WHEREAS, the Rev. Mr. James Sayre, formerly Rector of Trinity 



OF SENTENCES. 433 

Two general principles will be found to regu- § 5. 
late the removal of a sentence ; the one that the Removal. 

Church In Newport in Rhode Island, having removed into Connecticut, 
hath behaved himself in a very undutiful and unchristian manner, in 
depraving the Liturgy, contravening the government, and despising the 
discipline of the Protestant Episcopal Church in America — in traduc- 
ing, reviling, and misrepresenting the Bishop and Clergy of Connecti- 
cut, thereby endeavoring to excite schisms and divisions, and to destroy 
the peace and unity of the Church ; and hath also withdrawn himself 
from her Communion : 

Be it known to all whom it may concern. That the said Rev. Mr- 
James Sayre is hereby declared to be out of the Unity and Communion 
of the Church, and is forbidden to perform any Ecclesiastical Offices 
belonging to it, until he shall by repentance and reformation of his con- 
duct be qualified for, and shall be restored to its Peace and Communion. 
And all the members of the Protestant Episcopal Church, both Clergy 
and Laity, are hereby cautioned against holding communion, or any 
ecclesiastical fellowship with him the said Rev. Mr, James Sayre. 

You, therefore, the clergy of Connecticut and Rhode Island, are here- 
by directed to make this declaration public, by reading it in your 
several congregations immediately after sermon, on the Sunday next 
after it shall come to your hands. 

SAMUEL, Bp. Connect, and Rhode Island. 
Done at New Milford } in Connecticut, this 25th day of September. 1793. 

It may be suggested whether the law of the Churcn may not be de- 
fined by a declaratory canon to the effect that the sentence of excom- 
munication as known in this Church is applicable in the following 
cases only. 

When a Bishop, Priest, or Deacon, has been degraded from his of- 
fice, sentence of excommunication may be also pronounced in the dis- 
cretion of the court recommending, and the ecclesiastical authority 
pronouncing the sentence. 

Where a Bishop, Priest, or Deacon, has been suspended from his 
office, he may also be excommunicated, in the discretion of such court 
and authority, for the period during which such suspension shall re- 
main in force ] or for some lesser period. 

Where a layman has been repelled from the Holy Communion, and 
on appeal such repulsion has been confirmed, the ecclesiastical au- 
thority may also proceed to excommunicate such party. 

Notice of eveiy sentence of excommunication shall be given in like 
manner as is provided for the notice of a sentence of degradation, by 
canon 39, of 1832. 

The effect of an excommunication shall be that no minister of this 



434 OF SENTENCES. 

same authority, or a higher, which declared it, should remit 
it ; the other, that a similar formality should attend the re- 
moval as attended the infliction. Thus, in case of an excom- 
munication and a writ de contumace capiendo issuing, upon 
the party being absolved, a writ de excommunicato deliberan- 
do formerly issued upon a certificate of the Ordinary. (Fitzh. 
Na . Ero., fol. 63 ; Burns, vol. 2, &c.) 

So in many cases of a suspension, a declaration of the re- 
laxation is formally entered. In England it has become a 
settled practice, in case of suspension for habitual vicious- 
ness, such as drunkenness or incontinence, to require a certifi- 
cate of three clergymen, that the party has reformed and de- 
serves to be restored. This is made part of the sentence, 
without which it would not be legal to demand it. 1 And in 
such cases, as well as where the sentence is to remain until 
acknowledgment and reformation, a declaratory relaxation 
is necessary. Where, however, the sentence is for a definitive 
period of time, it must cease upon the efflux of that time. 

In the case of the Rev. T. Clowes, in New- York, the in- 
strument of revocation was as follows : " The Rev. T. C. 
having, in reference to the sentence of suspension pronounced 
on him on the 21st Oct., 1817, made full and satisfactory ac- 
knowledgement, whereby ecclesiastical discipline and the 
honor of the ministry are sustained, I do hereby revoke the 
said sentence of suspension, and I do declare that it is revoked, 

Church shall admit the party to the Holy Communion, and shall be 
punishable for so doing, unless he certify that he was ignorant at the 
time, of such sentence being pronounced, or ignorant of the identity of 
the party. 

The sentence of excommunication where it is not terminable by its 
own limitation, shall be remissible, in the case of degradation, by the 
House of Bishops; and in the case of a layman, by the Bishop of the 
diocese, with the advice and consent of the minister who repelled the 
party. Notice of such remission shall be given in the same manner. 
1 See the cases cited Coote's Eec. Trs. t 252. 



DISCIPLINE APPLICABLE TO THE LAITY. 435 

and that the said the Rev., &c.,. is restored to the exercise of 
the functions of the office of a presbyter of this Church." 1 , 



CRIMES 



TITLE V. 
DISCIPLINE APPLICABLE TO THE LAITY. 

The rubric prefixed to the order for the Holy 
Communion, is as follows : — " If among those who 0f 
come to be partakers of the Holy Communion, the and scandals 
minister shall know any to be an open and noto- T0 BE CEN - 
rious evil-liver, or to have done any wrong to his 
neighbors, by word or deed, so that the congregation be there- 
by offended, he shall advertise him that he presume not to 
come to the Lord's Table until he have openly declared himself 
to have truly repented and amended his former evil life, that 
the congregation may thereby be satisfied, and that he hath 
recompensed to parties to whom he hath done wrong, or at least 
declare himself to be in full purpose so to do, as soon as he con- 
veniently may. 

" The same order shall the minister use with those betwixt 
whom hepereeiveth malice and enmity to reign ; not suffering 
them to be partakers of the Lord's Table until he know them 
to be reconciled. And if any one of the parties so at variance 
be content to forgive from the bottom of his heart all that the 
other hath trespassed against him, and to make amends for that 
wherein he himself hath offended, and the other party will not 
be persuaded to a godly unity, but remain still in his froward- 
ness and malice, the minister in that case ought to admit the 
penitent person to the Holy Communion, and not him that is 
obstinate. 

"Provided that every minister so repel! ing^any as is herein 
specified, shall be obliged to give an account of the same to 
the Ordinary as soon as conveniently may be." 

1 Journals N. Y. Convention, 1823. 



436 DISCIPLINE APPLICABLE 

At the same time with the adoption of this rubric, a canon 
was passed, declaring that if any persons within this Church 
offend their brethren by any wickedness of life, such persons 
shall be repelled from the Holy Communion, agreeably to the 
rubric, and may be further proceeded against to the depriving 
them of all privileges of Church membership according to such 
rules or process as may be provided, either by the General Con- 
vention, or by the Conventions in the different States. (Canon 
12, 1789.) 

This was re-enacted in 1808, adding only the word Dio- 
cese. In 1817, a canon was passed, the same as the second 
section of the 42d Canon of 1832, which canon is as follows, 
and is now in force : 

" § 1. If any persons within this Church offend their breth- 
ren by any wickedness of life, such persons shall be repelled 
from the Holy Communion, agreeably to the rubric. 

" $ 2. There being a provision in the second rubric before 
the Communion service requiring that every minister repelling 
from the Communion shall give an account of the same to the 
Ordinary, it is hereby provided, that on the information to the 
effect stated being laid before the Ordinary, that is, the Bishop, 
it shall not be his duty to institute an inquiry, unless there 
be a complaint made to him in writing by the repelled party, 
But on receiving a complaint, it shall be the duty of the Bish- 
op (unless he think fit to restore him, from the insufficiency of 
the cause assigned by the minister,) to institute an inquiry, as 
may be directed by the canons of the diocese in which the event 
has taken place ; and the notice given as above by the minister 
shall be a sufficient presentation of the party repelled. 

" § 3. In the case of great heinousness of offence, on the 
part of members of this Church, they may be proceeded against 
to the depriving them of all privileges of Church membership, 
according to such rules or process as may be provided by the 
General Convention, and until such rules or process shall be 



TO THE LAITY 437 

provided, by such as may be provided by the different State 
Conventions." 



The rubric of our Prayer Book is almost an exact copy of 
that in the English office, which is part of the Statutes 2 & 5 
Edw. VI, and 13th, 14th, Char. 2d. 

By an act 1 Edw. VI. cap 1, it was declared that the minis- 
ter should not, without a lawful cause, deny the Communion 
to any person who will devoutly and humbly desire it, any law 
or ordinance, or custom to the contrary notwithstanding ; and 
I apprehend that this is the law of our Church. 

In a case in England, an action at law was brought against 
the minister, for refusing the sacrament. It was decided, 
against the plaintiff, but on technical grounds. (Siderfin's 
Rep., p. 14.) See an analogous case, Hetly 11 Wm. Jones, 305. 

But with us at any rate, such an action would not lie. It 
would be inconsistent with the principles I have endeavored to 
show govern such cases in our civil tribunals. Bishop Brownell 
justly observes : — " In repelling an evil-liver or a wrong-doer 
from the Communion, the minister will not be liable in an ac- 
tion of defamation, if he proceeds according to the rules of the 
society to which he belongs. As we have no state or national 
religion, every man connecting himself with a particular de* 
nomination of Christians tacitly or expressly agrees to be 
bound by its regulations. This is the dictate of reason. It 
has been settled as a principle of law in, at least, one of the 
states, and I doubt not it would be so received in every state. 
But the minister must proceed in strict conformity with the 
regulations of the ecclesiastical body to which he belongs. It 
will not do for him to set up qualifications of his own dicta- 
ting, such as a particular religious experience, or the refrain- 
ing from certain amusements." 

The English canons of 1603 (the 26th, 27th, and 109th) 
made upon the basis of the rubric, provided, that every min- 



438 DISCIPLINE APPLICABLE 

ister so repelling any person, shall upon complaint, or being 
required by the Ordinary, signify the cause thereof unto him, 
and therein obey his order and direction ; and by the rubric 
(passage added 13, 14, Car. 2) the minister was positively di- 
rected to give the account to the Ordinary within fourteen 
days. The Ordinary was then to proceed to punish, according 
to the canon. This, no doubt, is canon 109, by which it was 
provided, " that the Ordinary was to punish such offenders 
with the severity of the law, and not to admit them to the 
Communion till they be reformed." 

This power is vested in the first instance in the minister, 
but only to be exercised in the cases specified, and subject to 
the Bishop's revision ; and the understood construction of the 
English rubric is, that admonition must be first resorted to. 

The following is the substance of the law in the English 
Church, as stated by Dr. Wheatly, (on the Book of Common 
Prayer, 253, Ed. 1842.) After quoting the rubric, he dis- 
tinguishes between absolutely repelling and shutting out any 
one from the communion as by a judicial act, and only sus- 
pending a party for a time, till the minister has an oppor- 
tunity to send the case to the Ordinary. The first of these, 
he says, is what the rubric cannot be understood to imply, 
for by the law of the land, both ecclesi astical and civil, none 
are to be shut out from this Sacrament but such as are no- 
torious delinquents ; and none are notorious, but such as the 
sentence of the law hath, either upon their own confession or 
full conviction, declared to be so. 

He quotes St. Austin as to the practice of the Church : 

" "We cannot repel any man from the Communion unless 
he has freely confessed his offence, or hath been accused and 
convicted in some ecclesiastical consistory or secular court." 

" That all this plainly refers to the power of seclusion from 
the Communion judicially, and with authority ; whereas the 
design of this rubric is only to enable the curate to refuse to 



TO THE LAITY. 439 

administer to any of his congregation (of whose ill life and 
behaviour he has received sudden notice) till he can have an 
opportunity of laying his case before the Ordinary." 

Again he says, " that notoriety in the sense of the rubric 
is to be taken in a lower degree than those made notorious by 
sentence of law for crime. It refers to those whose evil 
living is supposed to be unknown to the Ordinary, yet so open 
as that the congregation is offended, and which the minister 
is to communicate to him. 

" That in the meanwhile the curate is empowered by this 
rubric (which is itself a law, being established by the Act of 
Uniformity) to refuse the Communion if, after due admoni- 
tion to keep away, he obstinately ofTers himself to receive it. 
That this was conformable to the practice of the ancient 
Church, in which, although all open offenders as soon as 
known were put to censure, yet if before censure they offered 
themselves at the Communion, they were repelled." He quotes 
a striking passage from St. Chrysostom. 1 

The theory then is, plainly, that the power of the min- 
ister is only suspensory. It is his duty to put the case im- 
mediately before the Ordinary. If the party does not submit, 
he is entitled to a revision of the act, and to a restoration if 
the grounds are proven insufficient. 

The difficulties which a minister is under in England, 
arising from the statute and the decisions of the courts, are 
well stated in Archbishop Sharp's Third Visitation Charge, 
p. 41, &o. 

1 The close of which is this, cc Though he be a general or provincial 
governor, or the emperor himself, that cometh unworthily, forbid him, 
and keep him off; thy power is greater than his. If any such get to 
the Table, reject him without fear. If thou darest not remove him, 
tell it to me. I will not suffer it. I will yield my life rather than the 
Lord's Body to any unworthy person, and suffer my own blood to be 
shed, before I will grant that holy blood to any but to him that is 
worthy." 



440 DISCIPLINE APPLICABLE 

In a case before the Standing Committee of New-York, 
hereafter more particularly noticed, it was discussed whether 
the repulsion by a minister would be treated as sufficient to 
exclude the party from being admitted to communion by any 
other minister of the diocese. It was generally agreed by 
■the clergy present that such would be the case. 

There does not appear, however, any legal ground for sup- 
posing that another clergyman would be authoritatively 
bound. The act is suspensory merely, at least if appealed 
from, and the rectorial jurisdiction is limited. It would be 
binding if confirmed by the Bishop. The provision suggested, 
under the head of Excommunication, {ante p. 433,) would 
meet the difficulty. 

The appeal to, and revision by the Bishop is a mat- 
ter of right. Bishop Brownell states, (Prayer Book, p. 282, 
Note,) "that the proviso must suppose a power in the 
Bishop to ratify or reverse the sentence, and a right of appeal 
in the person who is repelled. It is taken from the English 
rubric, which is predicated on such a power, and the 6th Ar- 
ticle of the Constitution of the Church in this diocese pro- 
vides, that in case of such an appeal, the minister shall, 
within one month, make a statement to the Bishop of the 
charges on which he proceeded, and the evidence by which 
they were supported." 

I do not find any such provision in the present constitution 
of Connecticut, (1847,) or among its canons. It is found in 
the Constitution of the 6th of June, 1792, and was omitted 
afterwards when the existing constitution was adopted. The 
6th article was as follows : "If any presbyter shall exclude 
from the Holy Communion any person belonging to his con- 
gregation, the presbyter shall transmit to the Bishop an ac- 
count thereof within one month, with the nature of the of- 
fence, and the evidence by which the charge is supported. 
And the sentence of the Bishop in convocation shall be deci- 



TO THE LAITY. 441 

sive, unless the person under suspension should appeal to a 
Council of Bishops." 

Although the requisition of the rubric, that an account be 
given to the Bishop, may be satisfied by stating the fact of 
repulsion only, yet the canon contemplates something more, 
by providing that the Bishop may restore the party for the 
insufficiency of the cause assigned. Certainly such a state- 
ment as Bishop Brownell mentions would be advisable ; per- 
haps the minister could be called upon to make it. 

As to the power of the Bishop, it cannot admit of any 
question. He would possess it by virtue of his inherent 
Episcopal authority in matters of government, independent of 
any right to be inferred from the rubric or canon. 

But these are sufficiently explicit. An analagous case 
before Bishop Mcllvaine of Ohio may be adverted to. A lay- 
man made a formal complaint to the Bishop against his rector 
for an oppressive administration of discipline under the loth 
canon of that diocese. 1 



The canon provides, that if the Bishop does not g 2. 
restore the party, upon the insufficiency of the Method of 
cause assigned, he is to institute an inquiry as may inquiry. 
be directed by the canons of the diocese. 

The Bishop has thus the power, under the canon, to replace 
the party, if he judge the reasons assigned are insufficient to 
warrant the rejection. Such a power would, it is presumed, 
be only exercised in cases of plain legal insufficiency. And 
Dr. Hawks with great force urges against this power int he 
Bishop to proceed without giving notice to the minister. 

Some of the dioceses have adopted regulations upon the 
subject. 

In Massachusetts, by a canon of 1846, it is provided, that 
whenever the Bishop shall institute an inquiry on the subject 
1 Journal of 1847, p. 17. 



442 DISCIPLINE APPLICABLE 

of repelling a person foom the Holy Communion, according to 
the rubric and the canons of the General Convention, he shall 
summon a council of two presbyters, and two laymen, of which 
he shall be president, to decide upon the case. 

In "Wisconsin, by canon 4, [Journal of 1847, p. 32,) the 
regulation is, that when a person who has been repelled the 
Holy Communion appeals to the Bishop, and is not restored by 
him, the Bishop may, and if the person demand it, it shall be 
his duty to appoint three presbyters, who shall make inquiry 
into the truth of the causes alleged, and shall make a report 
thereof, with their opinion thereon, to the Bishop. 

By the 7th canon of the diocese of Delaware, [Journal 
1844,) if a layman repelled from the Communion, according 
to the rubric, shall complain thereof to the Bishop, according 
to canon 42 of the General Convention of 1S32, the Bishop, 
(or his assistant Bishop,) whether belonging to this diocese, or 
having provisional charge thereof, shall, unless he restore him 
to the Communion, according to the said canon, appoint two 
disinterested clergymen and two disinterested laymen, who 
are communicants, to inquire into and try the case. If they 
report to the Bishop that the repelled person should be restored, 
the Bishop shall so direct, and no minister of this diocese shall 
deny him the Holy Communion. If they report otherwise, or 
make no report within three months from their appointment, 
the repulsion shall continue in force. If the judicatory be 
equally divided, they may elect an umpire, clerical or lay ; and 
if they do not define the term of the repulsion, the Bishop (or 
his assistant Bishop) may restore the repelled part, according 
to the rubric. 

The 11th canon of New- Jersey (1837) directs, that when 
a person who has been repelled appeals to the Bishop, and has 
not been restored by him, the Bishop may, and if the person 
repelled demand it, shall appoint one presbyter and two lay- 
men, who shall make inquiry into the truth of the facts al- 



TO THE LAITY. 443 

leged, and shall report thereof, with their opinion thereon, to 
the Bishop, who may proceed to restore the individual, or other- 
wise, as he may deem proper. 

And in Pennsylvania, by canon 2 of 1847, the party re- 
pelled may present his complaint in writing to the Bishop, 
The notice given by the minister shall stand in the place of a 
presentment of the party, and the proceedings are then to be 
the same as upon a presentment of a clergyman for an offence, 
except that in addition to the four clerical assessors, four lay- 
men are to be appointed in the manner designated, and the 
eight are to choose a layman as an additional member. They 
are to proceed as in the case of a clergyman, and to report 
whether the party has been rightfully repelled, according to 
the rubric or not ; and whether his repulsion ought or ought 
not to continue. If the judgment direct a farther continuance 
of the repulsion, it shall still be subject to the conditions and 
provisions of the rubric, 1 

By this canon, the judgment of the assessors is final, unless 
the Bishop grants a rehearing ; which seems to be his only 
control over it. 

But no rules have been adopted in a large number of the 
dioceses. There is none in New- York. 

In such cases, the method of inquiry must be determined 
by the Bishop. The power of revising by an inquiry involves 
this right, where no canonical regulation of the mode has 
been made. By analogy to a case of an inquiry into the qua- 
lifications of a party presented for institution, the method of 
investigation merely is wholly in his power, provided only it is 
in some ordinary mode, and with notice. (See ante p. 285.) 

Accordingly, in the case of B. L. AT., before the Standing 
Committee of New- York, January, 1849, the following course 
was adopted : — 

The committee resolved that the whole power which a Bish- 

j 1 See also a canon of the diocese of Rhode Island. 



444 DISCIPLINE APPLICABLE 

op could possess in the matter was vested in them, under the 
circumstances in which the diocese was placed. (See note 1.) 

That there being no canon of this diocese regulating the 
mode of proceeding, the Bishop, and therefore the committee, 
had the full power of prescribing it, observing those great rules 
which govern judicial investigations. 1 

I The substance of the following observations was prepared for a 
sub-committee, and circumstances led to its expansion and restate- 
ment. For the reasons adduced the author is therefore solely respon- 
sible. 

ci The first topic of inquiry is, whether the Standing Committee 
possess any authority in the case. The Minister has recognized the 
jurisdiction by addressing his account under the rubric to this body 
acting as the Ordinary, and the repelled party has made his appeal in 
a similar manner. But waiving the argument deducible from this sub- 
mission, the following is urged in vindication of the power of the Com- 
mittee. 

" First. That the phrase in the 42d canon of 1832, (section 2), fol- 
lowing the word Ordinary, viz :' that is the Bishop,' is a cotemporane- 
ous expression of what the word Ordinary means in the rubric. The 
original canon was passed by the same convention which adopted the 
Prayer Book. We are to consider the question precisely as if the word 
Bishop had been used in the rubric instead of the word Ordinary. That 
word is not found in any other canon, and the rubric is an exact copy of 
the English form, which accounts for its being there employed. It was 
expedient to explain a term but once employed in the canons. 

" Second. By the tenth canon of our Diocese as amended in 1845, in 
case of a vacancy of the Episcopate, or the inability or disability of the 
Bishop, all the powers of the Bishop in matters of discipline shall be 
exercised by the Standing Committee, except such as are expressly 
delegated to the clerical members thereof. A. similar canon, omitting 
the words italicised, is found in Pennsylvania and Missouri. 

u Third. It does not admit of question that in this Diocese the ques- 
tion must be considered precisely as if there was an actual vacancy by 
the death of the Bishop. Supposing then such a case, the canon re- 
ferred to appears conclusive, if that canon is legal. It is a case of dis- 
cipline. It is a case in which the Bishop would have the power as a 
matter of discipline. Is then the provision lawful ? 

II Fourth. It can only be proved illegal from being forbidden, or be- 
cause at variance with the constitution or canons of the General Con- 
vention, or the constitution of the Diocese. There is nothing in either 
constitution inhibiting the power. There is nothing in the canons 



TO THE LAITY. 445 

The letter of appointment which is set forth in the note, 
was finally adopted, and will exhibit the leading principles re- 
cognised by the committee. 

unless the phrase referred to in the 42d canon has that effect, which it 
is apprehended it cannot have. But the fourth canon directs that the 
duties of the Standing Committee may be prescribed by the canons 
of the respective Dioceses. The power to fulfil attends upon duties im- 
posed. 

" Fifth. The only question which seems doubtful is, whether the 
clerical members of the Committee alone do not possess the power. 
But this is the offence of a Layman; so it is treated by the canon. The 
account given by the Minister is a presentment of the offender. The 
canon in Pennsylvania regards the case in the same manner. True, the 
conduct of the minister may come indirectly in question. It may turn 
out that he has wantonly exercised his power. But this is neither a ne- 
cessary consequence, nor the case or issue raised. That is the presented 
offence of a Layman. The offence of the Minister would arise, when, 
and if he refused communion, after a judgment of restoration. And 
then his offence would be triable by Presbyters, and be subject to the. 
canon which prohibits any one but a Bishop from pronouncing sentence. 
What then is the power of a Bishop in such a case? The canon has 
imposed upon him the duty to inquire, and has given to the repelled 
party a right to have an inquiry. It declares that the inquiry shall be 
had as may be directed by the canons of the particular Diocese. The 
omission by a Diocese to regulate the method of investigation could 
not relieve the Bishop from the obligation, nor rob the party of the 
right. The Convention had the power of prescribing the course, and 
when prescribed, that became binding; but untii such action, as the 
Bishop was bound to inquire, he must have the power of settling the 
method of inquiry. 

" If we couple this reasoning, with the doctrine of the Church as to 
a Bishop ; s jurisdiction in matters of discipline, the point will be made 
more clear. Independently of any canon or rubric the Bishop possesses 
the right of determining the case of a party repelled from the commu- 
nion. The authority of Hooker, Gibson, Stillingfleet, the consecration 
office, the abundant canons, and the decisions of English courts, all re- 
cognize this. (See Ecclesiastical Polity, Book, 7, p. 239.) Introduction 
to Gibson' s Codex, p. 1, 3. Stilling fleet'' s Eccl. Cases, 94, 95. Bishop Brow- 
nelVs Prayer Book and note, p. 

''• It may be useful to add some explicit authority as to the right of 
a Bishop to perform part of his jurisdiction by Delegates. Bishop Stil- 
lingfleet, after pointing out the office and authority of Deans, Chancel- 
lors, &c, says, 'the Bishop by appointing a Chancellor does not dives t 
29 



446 DISCIPLINE APPLICABLE 

The course of the Standing Committee in this case, has 
met with the disapprobation of several divines whuse opinions 
are entitled to the highest respect. This is placed upon grounds 

himself of his own ordinary power, but he may delegate some part of 
it by commission to others, which goes no further than is expressed in 
it. For it is a great mistake in any to think that such who act by a 
delegated power can have any more authority than is given them where 
a special commission is required for the exercise of it. For by the 
General Commission no other authority passes but that of hearing 
causes; but all acts of voluntary jurisdiction require a Special Com- 
mission, which the Bishop may restrain as he sees cause.' (Eccle. 
Cases, p. 330, Ed. 1702. See also Cowel's Intr. Verba Ordinary.) 

''In the case of the Prebend of Hatcherties (Noy 7 s Reports, 153). a 
Dean having ordinary jurisdiction makes a Commissary by his deed, 
which is confirmed by the Chapter. The Dean dies. The question was 
if that was good to bind his successor. By Dodderidge, J. : Such a juris- 
diction is judical and the grant is but a delegation ; the actual power at 
all times remaining in the Ordinary. True it is that ecclesiastical ju- 
risdiction in judical acts may be exercised by substitute, but in law 
they are the acts of him who substituted the other. 

' : It is therefore submitted that the power of the Committee in this 
case is the same as that of a Lishop in full jurisdiction; that the 
method of inquiry in the absence of a Diocesan regulation is within 
the discretionary power of a Bishop, and therefore within that of the 
Committee ; and that such inquiry may be made personally, or by a 
delegation to take the testimony, and express an opinion upon the 
facts, subject to revision. See also the case from East, cited ante, p. 
285, also the case at 305." 

The Letter of Appointment was as follows : — 

" To the Rev. &c. &c. 

" Whereas the Rev. L. did by a written notice, dated the 4th of De- 
cember, 1848, give an account to the Standing Committee of the Dio- 
cese of New York of his having repelled A. B. from the holy Com- 
munion as guilty of publishing a grossly false and malicious libel upon 

the character of the Rector of St. Church, &c, and for previous 

publications of a similar character, published, &c. which account was 
accompanied with sundry documents as connected with such act of 
discipline, marked, &c. And whereas, the said A. B., did not on the 
present a complaint to the said Standing Committee in the 
nature of an appeal from the act of the said the Rev. &c, repelling 
him from the Holy Communion as aforesaid, and accompanied the same 
with various documents, marked, &c. Now therefore the Standing 



TO THE LAITY. 447 

of a general nature, which would equally condemn the princi- 
ciple of the canons of most of the dioceses, which have made 
any provision on the subject. 

The reasons assigned are substantially these, that in point 
of fact, the clergyman himself is upon a trial — his own con- 
Committee of the Diocese of New York, exercising the ecclesiastical 
authority, and jurisdiction of the Ordinary therein in the premises, do 
hereby authorise and appoint you, the above named, Commisioners di- 
ligently to make inquiry into the truth of the charges and the allega- 
tions against the said A. E., contained in the said account given by 

the said, the Rev. , and whether the said has been rightfully 

repelled according to the rubric and canon of the Church or not, and 
whether his repulsion ought or ought not to continue, and to report your 
opinion thereon to us. And for such purpose we have transmitted to 
you such account and such appeal, and all the documents which have 
been laid before us ; and you are to take such testimony, and the evi- 
dence of such witnesses as may be produced to you, which evidence 
shall be reduced to writing, and signed by such witnesses respectively, 
and some officer authorized by law to administer oaths, may administer 
an oath or arffimation to such witnesses : and the examination of wit- 
nesses and all your proceedings upon such inquiry shall be in presence 
of the parties, and of their counsel only if attendance of counsel is de- 
sired by either of them ; and all the testimony which you shall take in 
the premises you are to return to us together with your report. And 
such notice as you will deem reasonable, is to be given to the said 
parties, of your proceedings in the matter, and you are authorized to 
continue the same by adjournment from time to time as you shall see 
fit." 

The clause in this letter of appointment which is italicised, was 
inserted because certain communications had taken place, between the 
parties after the act of repulsion, and which had been transmitted with 
the account. They seemed to warrant the clause, although it ought 
to have been, and was at first, limited to the effect of those communi- 
cations. The author has had the advantage of very full communica- 
tions with the Honorable Luther Bradish, one of the members of the 
commission, and fully agrees with his suggestion, that this clause 
would not be proper in ordinary cases. 

Indeed the author, after the benefit of hearing and reading much 
from able divines and others, upon this subject, is inclined to tae 
opinion that it would be most expedient at least to restrict the powers 
of the Commissioners to the mere collection of the evidence, and em- 
bodying an abstract of the facts. 



448 DISCIPLINE APPLICABLE 

duct must be the subject of inquiry and judgment. If the 
act of repulsion is reversed, it involves his own condemnation, 
and this is effected by a body composed in part of laymen, 
when by the law of the Church he is amenable only to a Bish- 
op, or to members of his own order. 1 

Passing by the fact, that in a great number of cases, the 
error of the minister would be only a misinterpretation of the 
rubric or canon, or misinformation as to facts, let the ques- 
tion be viewed, where a censure would, indirectly indeed, but 
unavoidably, follow a reversal. 

Undeniably the minister is not the party put upon his trial 
on the record. The sentence of restoration is totally inopera- 
tive upon his station, office, or rights. It may in its conse- 
quences, and in these alone, wound his reputation. On the 
other side, the rejected layman is stripped of the great privi- 
lege of a Christian man, is severed as an unworthy member 
from Christ's body ; and stands before the Church first as the 
condemned, and on his appeal as the accused party. It is in 
this light, (and the observation is of great importance,) that 
the canon regards him. Upon his appeal, the notice given by the 
minister, is to be deemed the presentment of the layman. He 
then is the party charged — the party put on trial— the party di- 
rectly and practically affected by the sentence to be given. lean- 
not think that the establishment of a court partly composed 
of laymen for such an investigation, violates the settled and 

1 I quote the language of a Minister of the Church, strongly ex- 
pressing these views. The circumstances do not admit of a more par- 
ticular reference. "I should even have submitted the case to a Court of 
Presbyters, with a simple and formal protest against its being canoni- 
cal, and then would have abided by their decision, but I never did, and 
never will submit my acts performed as a Minister of Christ's Church, 
to the investigation of laymen. As a Clergyman I have relinquished 
not one solitary right which I possess as a citizen, and in becoming a 
Clergyman I oblige myself to obey no authority which is not either 
legal or inherent. Call it by whatever name they may, an appearance 
before such a Committee of Laymen is a trial however informal. ,; 



TO THE LAITY. 449 

the sound principle of the exclusive amenability of ministers 
to a tribunal of their own or of a superior order, when charged 
with, and to be tried for offences. 

With so much care did the Church in ancient times watch 
over this power of repulsion, that it" was one of the offices of 
its highest councils to revise the decisions even of Bishops 
upon the matter. By the 5th canon of the Council of Nice, 
concerning these, whether of the clergy or laity, who have 
been excommunicated by the Bishops of the several provinces, 
let the sentence of the canon prevail which pronounces that 
those persons who have been cast out by one Bishop are not 
to be received again into communion by any others. Inquiry 
should, however, be made whether they have been excommuni- 
cated through the peevishness, or contentiousness, or other such 
like bitterness of the Bishop. The canon then provides, that 
for making such inquiries, synods should be assembled twice 
every year, in every province ; that all the Bishops of the pro- 
vince being assembled together, such questions may be exam- 
ined into, and the offender justly condemned may appear to be 
excommunicated by all the Bishops, until a more lenient sen- 
tence is pronounced by the General Assembly. 
^ Yet every regulation which makes any decision final except 
that of a Bishop, where there is one, seems to the author ob- 
jectionable. The substitution of a Standing Committee in 
some cases is matter of necessity ; and in the present situa. 
tion of thecountry, perhaps even these cases may be met with- 
out much inconvenience. 

In examining the provisions of these various dioceses, we 
are struck with two points of moment. First, that in all in- 
stances but one, laymen participate in the investigation. In 
two instances, Pennsylvania and New- Jersey, a majority are 
laymen. In Wisconsin alone is the inquiry made by clergy- 
men solely. The next observation is, that in two instances, 



450 DISCIPLINE APPLICABLE 

Pennsylvania and Delaware, the judgment of a court thus con- 
stituted is made final. This seems an innovation upon a Bish- 
op's judicial ultimate power, scarcely defensible. 

There are some other regulations in the dioceses upon this 
subject, which deserve notice. 

In Maryland, by the 23d Canon of 1847, the minister is 
first to admonish the party privately ; and if, after this, he 
deem it necessary, he may convene the vestry and church- 
wardens, first giving the party reasonable notice in writing of 
the charge, and of the time and place appointed for the meet- 
ing to inquire into it. The minister, wardens and vestry, or 
a majority, shall examine into the charge, and if a majority 
of those in attendance should be of opinion that the accused is 
guilty, the minister shall pronounce such sentence as the of- 
fence may, in his judgment, deserve, which shall be either 
reproof before the vestry and wardens, suspension from the 
Holy Communion, or excommunication. 1 

In Virginia, by Canon 6 of 1837, a member of the Church 
being a communicant, conducting himself or herself in a 
manner unworthy of a Christian, may and ought to be ad- 
monished or suspended by the minister of the parish or con- 
gregation, according to the rubric. And in cases where it 
may be deemed expedient by the minister, or may be request- 
ed by the accused party, the churchwardens, or either of 
them, if communicants, shall be summoned to assist the min- 
ister in ascertaining the facts of the case; provided, that if 
such wardens or warden shall refuse or fail to act within ten 
days, the minister shall proceed to act under the rubric of this 
Church. 

In the Convention of 1850, this canon was amended by 
inserting, after the words according to the rubric, the follow- 
ing clause: "And gaming, attendance on horse-racing and 
theatrical amusements, witnessing immodest and licentious 
1 See ante, Tit. Excommunication, Note. 



TO THE L^XTY. 451 

exhibitions or shows, attending public balls, habitual neglect 
of public worship, or a denial of the doctrines of the gospel, 
as generally set forth in the authorized standards of the 
Church, are offences for which discipline should be exercised. 
This enumeration, however, shall not be construed to include 
all the subjects of discipline in the Church." 

A highly respectable minority opposed the adoption of this 
canon on the grounds, first, that it was unconstitutional, and 
next, that it was inexpedient. The author has been favored 
with a pamphlet, setting forth with ability and calmness the 
reasons of this opposition. 

The principles, however, which have been supported in 
this work, tend to sustain the validity of the canon. The 
powers of the General Convention to legislation, it has been 
stated, were of two classes — those specially conferred by the 
constitution, and those inherently possessed by that body. 
The great bulk of the canons rest upon the latter for their 
source and warrant. But as to all this class of powers, the 
authority is concurrent with that of the dioceses. The right 
to legislate upon the given subject is in the dioceses, until an 
act of the General Convention has been passed upon it. That 
act will form the paramount law; and will supersede any reg- 
ulation of a diocese repugnant to it already passed, and the 
right to make any such repugnant regulation in future. But 
the fact of inconsistency must be established ; the two acts of 
legislation must be ad idem. The power of the diocese is so 
far fully superseded, and no farther. 

Undoubtedly, there may be cases in which the application 
of this doctrine may be delicate and difficult ; but not more so 
than is every day occurring in the tribunals of justice, in brings 
ing the general maxims of law to bear in particular instances m 

The legislation of the General Convention on the matter 
in question is contained in the third section of the 42d canon 
of 1832, providing, that for cases of great heinousness of of- 



452 DISCIPLINE APPLICABLE 

fence, the members may be proceeded against, according to 
rules to be provided, &c. 

Now if the offences enumerated in the Virginia canon — 
of attending a theatre, for example — are not of great heinous- 
ness within the general canon, then the two acts of legislation 
are upon two distinct matters ; not indeed in kind, but in 
degree. 

Had the canon of the General Convention contained any 
words of exclusion — had it declared that the offences for which 
a layman might be proceeded against, should be those enume- 
rated, and those only, or used any words importing a full enu- 
meration of offences, there would be an end of the controversy. 

No doubt a question may fairly be raised in this, as well 
as in many other cases, as to what makes an act of legislation 
exclusive, and it might be urged here, that in providing that 
one class of offences should be punishable, a negation of all 
other cases was implied. 

But in the author's humble opinion, this is not tenable. It 
seems that something more is necessary to work a prohibition. 
Offences differ largely in their degree ; and the enactment in 
question appears to cover only that aggravated degree of crime, 
to which the highest penalty, viz., that of excommunication, is 
to be attached. The character of the offence is marked by the 
severity of the punishment, and that severity indicates the of- 
fences legislated for. It leaves a body of lesser violations, to 
which a lesser censure is appropriate, for the regulation of 
those conventions which, before the canon was passed, pos- 
sessed the right of acting upon the whole subj ect. The Vir- 
ginia canon provides for an admonition, or repulsion from the 
table only. 

Another view, which appears to have been taken by some 
of the advocates of the canon, rests on the supposition that 
the specific cases may be treated, by fair interpretation, as 
within the words, great heinonsness of offence. The canon 



TO THE LAITY. 453 

of Virginia is then but declaratory of the meaning of the terms 
used in the general canon. 

The difficulty attending this view is, that it is superfluous, 
and perhaps mischievous. If a case occurred before a Church 
tribunal of Virginia, involving the construction of the phrase, 
it would be bound to judge without regard to the construction 
of the convention. It would be its duty to act as the judicial 
interpreter of the law of the General Convention, not as the 
agent to declare and enforce the interpretation of another 
body. The declaratory resolution could, justly, possess no 
other authority, than the opinions of wise and eminent men 
are entitled to. But the very fact of the expression of that 
opinion in so formal a manner by a Convention, would produce 
an undue influence upon the judgment of any court. 

I shall close the consideration of this important subject 
with a few suggestions. 

In the first place, the ground of a repulsion is, " the being 
an open and notorious evil-liver ;" the force of which phrase 
is explained by Wheatly in the passage I have cited. Next, 
" that the party has done a wrong to his neighbor, by word or 
deed, so that the congregation be thereby offended." These 
are the rubrical requisitions. Then the canon provides, that 
"if any persons within this Church offend their brethren by 
any wickedness of life," they may be repelled ; and " in the 
case of great heinousness of offence, may be deprived of all 
privileges of Church membership." 

It has been discussed whether the power could be exercised 
by a minister in a case in which a slander was uttered against 
himself, assuming the congregation to be offended. And Bish- 
op Onderdonk countenances the negative opinion, in a case 
cited by Dr. Hawks as taking place in New- York in 1832. 1 
I do not look upon it as a decision of the case on that point, for 
the judgment of the Bishop was plainly right on the fifth of 

1 Constitution and Canons, p. 369 



454 DISCIPLINE APPLICABLE TO THE LAITY. 

the reasons given by him. "With the greatest deference for the 
experience and strong judgment of the Bishop, this opinion 
may be doubted. The rejection is warranted by the language 
of that clause of the rubric, "doing wrong to a neighbor by 
word or deed." There is no other redress open to an assailed 
and calumniated minister within the discipline of the Church ; 
and if he may not repel, the shocking scene may be exhibited 
of the reviler receiving the emblems from one he has slandered, 
and the reviled administering them, while the feelings of re- 
sentment and dislike are struggling for sway in his bosom. 

Yet undoubtedly there should be some restriction upon the 
exercise of the right in such a case. I have been informed, 
that in a similar instance, all the facts, (principally resting on 
documents,) were submitted to a brother clergyman, and his 
opinion obtained, that if the party repelled were his parishion- 
er, and had made the same accusations against the minister 
whose parishioner he was, he would proceed. A canonical 
regulation to this effect might be advisable. 

Again, The act of repulsion is, in England, suspensotory 
merely ; and it was so declared in the article of the old con- 
stitution of Connecticut, which, probably, was drawn by Bish- 
op Seabury. The account is then given to the Ordinary. In 
England, as I understand it, he must proceed to inquire. Not 
so here, unless a complaint is made. If no complaint is filed, 
and no restoration for insufficiency takes place, the act of sus- 
pension remains in force, remissible under the rubrics, and by 
the minister. If an appeal is taken, and the act of the min- 
ister is reversed, a sentence of restoration is given. Bat if 
confirmed, two courses may be pursued. First, to declare that 
the act of repulsion was warranted by the rubric and canons, 
and that the suspension of the party should continue, subject 
to the provisions of the rubrics. But next, I think the Bishop 
may go farther, and not merely ratify the repulsion, but pro- 



TRIAL OF A BISHOP. 455 

ceed to a deprivation of the privileges of Church membership, 
that is, to the lesser excommunication. 

The effect of this would be twofold. It would definitely 
settle the question of exclusion from the table in every other 
church, and I think in every other diocese ; and it would re- 
quire that a remission should be pronounced by the Bishop. 
The authority of the minister is at an end. 



TITLE VI. 
TRIAL OF A BISHOP. 

(Canon 3 of 1844 is as follows :— ) 

§ 1. The trial of a Bishop shall be on a presentment in 
writing, specifying the offence of which he is alleged to be 
guilty, with reasonable certainty as to time, place, and cir- 
cumstances. Sach presentment may be made for any crime 
or immorality, for heresy, for violation of the constitution or 
canons of this Church, or of the Church in the diocese to which 
he belongs. Said presentment may be made by the conven- 
tion of the diocese to which the accused Bishop belongs, two- 
thirds of each order present concurring : Provided, that two" 
thirds of the clergy entitled to seats in said convention be 
present : and Provided also, that two-thirds of the parishes 
canonically in union with said covention be represented there- 
in ; and the vote thereon shall not in any case take place on 
the same day on which the resolution to present is offered ; 
and it may also be made by any three Bishops of this Church. 
When made by the convention, it shall be signed by a commit- 
tee of prosecution, consisting of three clergymen and three 
laymen, to be appointed for that purpose ; and when by three 
Bishops, it shall be signed by them respectively, in their offi- 
cial characters. 

" k 2. Such presentment shall be addressed " To the Bishops 



456 TRIAL OF A BISHOP. 

of the Protestant Episcopal Church in the United States," and 
shall be delivered to the presiding Bishop, who shall send copies 
thereof without delay to the several Bishops of this Church 
then being within the territory of the United States : Provi- 
ded, that if the presentment be made by three Bishops, no 
copies shall be sent to them : and Provided further, that if 
the presiding Bishop be the subject of the presentment, or if 
he be one of the three Bishops presenting, such presentment 
shall be delivered to the Bishop next in seniority, the same not 
being one of the three presenting ; whose duty it shall be, in 
such case, to perform all the duties enjoined by this canon on 
the presiding Bishop. Upon a presentment made in either of 
the modes pointed out in section 1 of this canon, the course of 
proceeding shall be as follows : 

" § 3. The presiding Bishop shall, without delay, cause a 
copy of the presentment to be served on the accused, and shall 
give notice, with all convenient speed, to the several Bishops 
then being within the territory of the United States, appointing 
a time and place for their assembling together ; and any num- 
ber thereof, being not less than seven, other than the Bishops 
presenting, then and there assembled, shall constitute the Court 
for the trial of the accused : he shall also, at the same time, 
cause at least thirty days' notice of the time and place of meet- 
ing to be given, both to the accused, and to the parties present- 
ing him, by a summoner to be appointed by him ; and shall 
also call on the accused by a written summons to appear and 
answer. The place of trial shall always be within the diocese 
in which the accused Bishop resides. If the accused Bishop 
appear before proceeding to trial, he shall be called on by the 
court to say whether he is guilty or not guilty of the offence or 
offences charged against him ; and on his neglect or refusal, 
the plea of not guilty shall be entered for him, and the trial 
shall proceed : Provided, that for sufficient cause, the court 
may adjourn from time to time : and Provided also, that the 



TRIAL OF A BISHOP. 457 

accused shall at all times during the trial have liberty to be 
present, to produce his testimony, and to make his defence. 

" § 4. "When the court proceeds to trial, some officer au- 
thorized by law to administer oaths, may, at the desire of either 
party, be requested to administer an oath or affirmation to the 
witnesses, that they will testify the truth, the whole truth, and 
nothing but the truth, concerning the matters charged in the 
presentment, and the testimony of each witness shall be re- 
duced to writing. And in case the testimony of any witness 
whose attendance on the trial cannot be obtained, is desired, 
it shall be lawful for either party, at any time after notice of 
the presentment is served on the accused, to apply to the court, 
if in session, or if not, to any Bishop, who shall thereupon 
appoint a commissary to take the deposition of such witness. 
And such party, so desiring to take the deposition, shall give 
to the other party, or some one of them, reasonable notice of the 
time and place of taking the deposition, accompanying such 
notice with the interrogatories to be propounded to the wit- 
ness ; whereupon it shall be lawful for the other party, within 
six days after such notice, to propound cross-interrogatories ; 
and such interrogatories and cross interrogatories, if any be 
propounded, shall be sent to the commissary, who shall there- 
upon proceed to take the testimony of such witness, and trans- 
mit it, under seal, to the court. But no deposition shall be 
read at the trial unless the court have reasonable assurance 
that the attendance of the witness cannot be procured, or un- 
less both parties shall consent that it may be read. 

" § 5. The Court having fully heard the allegations and 
testimony of the parties, and deliberately considered the same, 
after the parties have withdrawn, shall declare respectively, 
whether, in their opinion, the accused be guilty or not 
guilty of the charges and specifications contained in the pre- 
sentment, in the order in which they are set forth ; and the de- 
claration of a majority of the court being reduced to writing, 



458 TRIAL OF THE BIS'HOP. 

and signed by those who asssent thereto, shall be considered 
as the judgment of the said court, and shall be pronounced in 
the presence of the parties, if they choose to attend. And if 
it be that the accused is guilty, the court shall, at the same 
time pass sentence, and award the penalty of admonition, sus- 
pension, or deposition, as to them the offence or offences proved 
may seem to deserve : Provided, that if the accused shall, be- 
fore sentence is passed, show satisfactory cause to induce a 
belief that justice has not been done, the court, or a majority 
of its members, may, according to a sound discretion, grant a 
rehearing ; and in either case, before passing sentence, the 
accused shall have the opportunity of being heard, if he have 
aught to say in excuse or palliation : Provided, that, the ac- 
cused shall not be held guilty unless a majority of the court 
shall concur, in regard to one or more of the offences charged, 
and only as relates to those charges in which a majority so 
concur. 

" § 6. If the accused Bishop neglect or refuse to appear, 
according to the summons of the court, notice having been 
served on him as aforesaid, except for some reasonable cause, 
to be allowed by the said court, they shall pronounce him to be 
in contumacy, and sentence of suspension from the ministry 
shall be pronounced against him for contumacy by the court ; 
but the said sentence shall be reversed, if, within three calen- 
dar months, he shall tender himself ready, and accordingly 
appear, and take his trial on the presentment. But if the ac- 
cused Bishop shall not so tender himself before the expiration 
of the said three months, the sentence of deposition from the 
ministry shall be pronounced against him by the court. And 
it shall be the duty of the court, whenever sentence has been 
pronounced, whether it be on trial or for contumacy, to com- 
municate such sentence to the ecclesiastical authority of every 
diocese of this Church ; and it shall be the duty of said eccle- 
siastical authorities to cause such sentence to be publicly read 



TRIAL OF A BISHOP, 45 

to the congregations of each diocese by the respective ministers 
thereof. 

" § 7. All notices and papers contemplated in this canon, 
may be served by a summoner or summoners, to be appointed 
by the Bishop to whom the presentment is made, or by the 
court, when the same is in session; and the certificate of any 
such summoner shall be evidence of the due service of a no- 
tice or paper. In case of service by any other person, the fact 
may be proved by the affidavit of such person. The delivery 
of a written notice or paper to a party, or the leaving of it at 
his last place of residence, shall be deemed a sufficient service 
of such notice or paper. 

" § 8. The accused party may have the privilege of ap- 
pearing by counsel, and in case of the exercise of such privi- 
lege, but not otherwise, those presenting shall have the like 
privilege. 

" § 9. If at any time, during the session of any (xeneral 
Convention, any Bishop shall make to the House of Bishops a 
written acknowledgment of his unworthiness or criminality 
in any particular, the House of Bishops may proceed, without 
trial, to determine, by vote, whether the said offending and 
confessing Bishop shall be admonished, or be suspended from 
his office, or be deposed ; and the sentence thus determined by 
a majority of the votes of the House of Bishops, shall be pro- 
nounced by the Bishop presiding, in the presence of the said 
House of Bishops, and entered on the Journal of the House, 
and a copy of the said sentence, attested by the hand and sea 1 
of the presiding Bishop, shall be sent to the said Bishop, and 
to the Standing Committee of his diocese, and to the ecclesi- 
astical authority of every diocese of this Church ; and it shall 
be the duty of said ecclesiastical authorities to cause such sen- 
tence, unless it be the sentence of admonition, to be publicly 
read to the congregations of each diocese, by the respective 
ministers thereof. 



460 TRIAL OF A BISHOP. 

" § 10. Any Bishop of this Church not having ecclesiastical 
jurisdiction, shall be subject to presentment, trial, and sen- 
tence, as hereinbefore provided, but shall not be included in 
any other provision of this canon. 

" § 11. Canon IY. of 1841 is hereby repealed." : 

The former and first canon was the fourth of 1841. This 
was adopted upon the addition to the 6th article of the consti- 
tution being made, that the mode of trying Bishops shall be 
provided by the General Convention. 

The committee on canons reported in 1847 a canon mate- 
rially changing and adding to the provisions of that of 1844. 
No action took place upon it, and the subject will undoubtedly 
receive farther consideration, and some legislative action. It is 
as follows :— 

" § 1. The trial of a Bishop shall be on a presentment, in 
writing, specifying the offence or offences of which it is alleged 
that he is guilty, with reasonable certainty as to time, place, 
and circumstances. Such presentment may be made for any 
crime or immorality, for heresy, teaching and maintaining 
doctrines contrary to those of this Church, or for a violation of 
the Constitution or Canons of this Church, or of the Diocese 
to which he belongs. Such presentment in the case of heresy, 
teaching and maintaining doctrines contrary to those of this 
Church, may be made by any one Bishop of this Church. In 
the case of crime, immorality, or violation of a Constitution or 
Canon, it shall be made by the Convention of the Diocese to 
which the accused Bishop belongs, a majority of each order 
concurring. But, two-thirds of the Clergy entitled to seats 
in such Convention, and a Lay representation from two-thirds 
of the parishes canonically in union with said Convention shall 
be present at the time of taking the vote; and the vote shall 
not be taken, in any case, upon the same day on which the 
resolution to present is offered. When such presentment is 
made by a Bishop, it shall be signed by him in his official 



TRIAL OF A BISHOP. 4G1 

capacity, and when the Convention, by a Committee of three 
Clergymen and three Laymen, to be appointed by the Con- 
vention for that purpose. But no charge or specification shall 
be founded upon any fact which has not occurred within the 
five last years preceding the date of such presentment. 

" § 2. Such presentment shall be addressed to the Bishops 
of the Protestant Episcopal Church in the United States, and 
shall be delivered to the junior Bishop, not being the presenter, 
nor the party presented. 

" § 3. The Bishop receiving such presentment shall without 
delay, cause a copy of the said presentment to be served on 
the accused, and shall give him written notice to attend at 
some place not more than one hundred miles from the place 
of residence of the accused Bishop, and at some time not less 
than twenty days after the time of serving such notice, either 
personally, or by some agent authorized by him, in writing, to 
act for him in the premises, for the purpose of selecting by 
lot, the Bishops who shall form the Court for the trial of the 
said accused Bishop upon the said presentment. He shall also 
give notice of the time and place appointed for such selection 
to the presenting Bishop, or to the first signer of the present- 
ment, if the same shall have been made by a Convention. At 
the time and place appointed in the notices, the Bishop who 
has given the notices shall attend, and in the presence of the 
accused Bishop, or of his agent authorized as aforesaid, or if 
neither of them shall attend, in the presence of two Presbyters 
of the Church, named by the Bishop who has given the notices, 
and also in the presence of the presenting Bishop or Commit- 
tee, or of such person or persons as may attend in his or their 
behalf, the said Bishop shall cause to be placed in a box the 
names of all the Bishops of this Church, then being within 
the territory of the United States, except the accused and the 
presenting Bishop. He shall then cause eighteen of the said 
names to be drawn in the presence of two or three witnesses, 
30 



462 TRIAL OF A BISHOP. 

by a child under the age of twelve years, to be selected by 
him. The names so drawn shall be entered upon a list as 
they are drawn, and the list, or a copy thereof, delivered or 
sent without delay to the accused Bishop, who shall within 
five days strike from the said list any nine names which he 
may choose, and return the said list to the Bishop from whom 
he has received it. The said Bishop shall then without delay, 
send to each of the nine Bishops whose names remain on the 
list, or if more than nine remain, to each of those nine of them 
whose names were first drawn; and if the accused Bishop shall 
not within the limited time return the said list, then to each 
of the nine Bishops whose names were first drawn, copies of 
the said presentment, and shall cause at least thirty days 
notice of the time and place of trial to be given to each of 
the said Bishops, and to the presenting Bishop, or the first 
signer of the presentment, if it has been made by a Conven- 
tion. The said nine Bishops, or any seven or eight of them 
assembled at the time and place appointed for the trial in such 
notice, shall constitute a court for the trial of the accused. 
The accused shall also be summoned by a written summons, 
signed by the Bishop, who shall have received the presentment, 
to appear and answer such presentment. The place of trial 
shall always be within the Diocese in which the accused 
Bishop resides. If the accused Bishop appear, before proceed- 
ing to trial, he shall be called upon by the Court to say whether 
he is guilty or not guilty of the offence or offences charged 
against him ; and on his neglect or refusal so to do, the plea 
of not guilty shall be entered for him, and the trial shall pro- 
ceed ; Provided, That, for sufficient cause, the Court may 
adjourn from time to time : And, provided, also, That the 
accused shall at all times, during the trial, have liberty to be 
present, and in due time and order to produce his testimony 
and to make his defence. 

" § 4. No testimony shall be received at the trial except 



TKIAL OF A BISHOP. 463 

from witnesses who shall have taken an oath or affirmation, to 
be administered by some member of the Court, that they wiU 
testify the truth, the whole truth, and nothing but the truth, 
concerning the matters charged in the presentment, and the 
testimony of each witness shall be reduced to writing. And 
in case the testimony of any witness whose attendance on the 
trial cannot be obtained, is desired, it shall be lawful for either 
party, at any time after the Bishops who are to compose the 
Court have been selected, to apply to the Court, if in session, 
or if not, to any member thereof, who shall thereupon appoint 
a Commissary to take the deposition of such witness. And 
such party so desiring to take the deposition, shall give to the 
other party, or to some one of them, reasonable notice of the 
time and place of taking the same, accompanying such notice 
with the interrogatories to be propounded to the witness, where- 
upon it shall be lawful for the other party, within six days 
after such notice, to propound cross interrogatories, and such 
interrogatories and cross interrogatories, if any be propounded, 
shall be sent to the Commissary, who shall thereupon proceed 
to take the testimony of such witness, upon oath or affirmation, 
to be by him administered, and transmit it under seal to the 
Court. But no deposition shall be read at the trial, unless 
the Court have reasonable assurance that the attendance of 
the witness cannot be procured, or unless both parties shall 
consent that it may be read. And no fact shall be regarded 
as proved, unless by the testimony of two witnesses, or by that 
of one corroborated by circumstances. 

" § 5. If any person, being a member of this Church, shall 
be summoned to attend as a witness any Court, constituted 
under this Canon, sitting within a reasonable distance of his 
or her residence, or being present in such Court, shall refuse 
to testify, or be sworn or affirmed, or shall refuse to appear 
before any Commissary appointed as aforesaid, at a suitable 
time and place, upon reasonable notice, or being before him, 



464 TRIAL OF A BISHOP. 

refuse to testify or be sworn or affirmed, such person may be 
sentenced by the Court in a summary manner to admonition, 
and the sentence of admonition shall be drawn up in such 
form as the Court may approve, and read during Divine service 
by the officiating minister, in such place or places of worship 
as the Court may direct, and it is hereby made the duty of 
every Clergyman of this Church to obey the directions of the 
Court in the matter. 

" § 6. The Court having fully heard the allegations and 
proofs of the parties, and deliberately considered the same, 
after the parties have withdrawn, shall declare respectively 
whether, in their opinion, the accused is guilty or not guilty 
of each particular charge and specification contained in the 
presentment, in the order in which they are set forth ; and the 
accused shall be considered as not guilty of every charge and 
specification of which he shall not be pronounced guilty by two- 
thirds of the members of the Court. The decision of the Court 
as to all the charges and specifications of which two-thirds of 
the members of the Court have found him guilty, shall be re- 
duced to writing, and signed by those who assent to it; and a 
decision pronouncing him not guilty of all those charges and 
specifications of which two-thirds shall have pronounced him 
guilty, shall also be drawn up and signed by those who assent 
to it ; and the decisions thus signed shall be regarded as the 
judgment of the Court, and shall be pronounced in the presence 
of the parties, if they shall think proper to attend. 

" § 7. If the accused shall be found guilty of any charge 
or specification, the Court shall proceed to ask him whether 
he has any thing to say before the sentence is passed, and 
may, in their discretion, give him time to prepare what he 
wishes to say, and appoint a time for passing the sentence : 
and before passing sentence, the Court may adjourn from time 
to time, and give the accused reasonable opportunity of show- 
ing cause to induce a belief that justice has not been done, or 



TRIAL OF A BISHOP. 465 

that he has discovered new testimony, and the Court, or a 
majority of its members may, according to a sound discretion, 
grant him a new trial. Before passing sentence, the accused 
shall always have the opportunity of being heard, if he have 
aught to say in excuse or palliation. 

" § 8. The sentence may be admonition, suspension or de- 
gradation : Provided, that the sentence for a violation of a 
Canon or Constitution, not involving immorality, shall be only 
admonition, or suspension for a limited time ; the sentence for 
heresy shall be, for the first offence, suspension until the party 
shall recant the heresy, and for a subsequent offence, deposi- 
tion ; the sentence for all other offences may be either admo- 
nition, suspension for a limited and definite time, or to be 
determined upon some event or some act of the suspended 
Bishop, or degradation ; but degradation shall not be inflicted 
unless by the consent of two-thirds of the members of the 
Court. Such sentence of degradation shall not involve ex- 
communication, unless the Court shall expressly so direct. 

" § 9. If the accused Bishop neglect or refuse to appear, 
according to the summons, notice having been served on him 
as aforesaid, except for some reasonable cause, to be allowed 
by the Court, they shall proceed to pronounce him in contu- 
macy, and sentence of suspension from the Ministry until he 
shall appear, and take his trial, shall be pronounced against 
him for contumacy by the Court ; but the said sentence shall 
be relaxed, if within three months he shall tender himself 
ready, and accordingly appear and take his trial on the pre- 
sentment. But if the accused Bishop shall not tender himself 
before the expiration of the said three months, the sentence 
of degradation from the Ministry shall be pronounced against 
him by the Court. And it shall be the duty of the Court, 
whenever sentence has been pronounced, whether it be on 
trial, or for contumacy, to communicate such sentence to 
the Ecclesiastical authority of every Diocese of this Church ; 



466 TRIAL OF A BISHOP. 

and it shall be the duty of said Ecclesiastical authorities to 
cause such sentence, unless it be a sentence of admonition, to 
be publicly read to the congregation of each Diocese by the 
respective Ministers thereof. 

" § 10. All notices and papers contemplated in this Canon 
may be served by a summoner or summoners to be appointed 
by the Bishop io whom the presentment is made ? or by the 
Court when the same is in session ; and the certificate of any 
such summoner shall be evidence of the due service of a notice 
or paper. In case of service by any other person, the fact 
may be proved by the affidavit of such person, the delivery 
of a written notice or paper to a party, or leaving it at his 
residence, or last known residence, shall be deemed a sufficient 
service of such notice or paper. 

" § 11. The trial of every accused Bishop shall be conducted 
by a Church advocate, to be appointed by the Court. The 
accused may, if he think proper, have the aid of counsel, and 
if he should choose to have more than one counsel, the Church 
Advocate may have assistant Advocates ; but in every case 
the Court may regulate the number of counsel who shall 
address the Court or examine witnesses, and in no case shall 
any Clergyman of this Church appear before the Court as 
an advocate. 

" § 12. If, at any time during the session of any General 
Convention, any Bishop shall make to the House of Bishops a 
written acknowledgement of unworthiness or criminality in 
any particular, the House of Bishops may proceed, without 
trial, to determine by vote, whether the said offending and 
confessing Bishop shall be admonished, or be suspended from 
his office, or be degraded ; and the sentence thus determined by 
a majority of the votes of the House of Bishops, shall be pro- 
nounced by the Bishop presiding, in the presence of the said 
House of Bishops, and entered on the journal of the House ; 
and a copy of the said sentence, attested by the hand and seal 



ECCLESIASTICAL JURISDICTION". 467 

of the presiding Bishop shall be sent to the said Bishop, and 
to the Standing Committee of his Diocese, and to the Eccle- 
siastical authority of every Diocese of this Church ; and it 
shall be the duty of said Ecclesiastical authorities to cause 
such sentence, unless it be the sentence of admonition, to be 
publicly read to the congregations of such diocese by the 
respective ministers thereof; provided that no sentence of sus- 
pension shall be passed by virtue of this section, which might 
not have been passed by a Court. 

" § 13. Any Bishop of this Church not having Ecclesiastical 
jurisdiction, shall be subject to presentment, trial, and sentence, 
as is hereinbefore provided, but shall not be included in any 
other provision of this Canon. 

" § 14. Canon III. of 1844, is hereby repealed." 



TITLE VII. 



ECCLESIASTICAL JURISDICTION AND THE EFFECT OF ECCLESIAS- 
TICAL SENTENCES. 

In the earliest ages of the Church, before Christianity re- 
ceived the encouragement, and submitted to the power of 
monarchs, it may be assumed, that the determination of con- 
troversies between Christians was generally made by mem- 
bers of the Church. The exhortation of the Apostle in the 6th 
chapter of Corinthians, would be greatly respected by all the dis- 
ciples. It is not understood by the commentators, that a sub- 
mission to the least esteemed of the members was enjoined 
to the exclusion of the rulers of the Church ; but merely that 
recourse should be had to these, even the lowest in order, 
rather than to the tribunals of the heathen. The censure was 
of the accuser who summoned the party to such tribunals, 
not of the accused who defended himself when driven there. 
And farther, the direction of our Lord 1 to resort at last to the 

1 Matthew, chap. 18 : 2, 15. 



468 ECCLESIASTICAL JURISDICTION. 

decision of the Church, if interpreted as a permanent injunc- 
tion, would be looked upon with still deeper respect. 

In consonance with these views, during the reign of pa- 
gan emperors, when Christians were not permitted to be 
judges, they were allowed the privilege of submitting their 
controversies to arbiters of their own selection. In this situ- 
ation, nothing was more natural, than that the determination 
of controversies, whatever might be their nature, should 
devolve upon the Bishops. Their undoubted superintendance 
in all matters of spiritual government and discipline — their 
office — and generally, their experience and learning, pointed 
them out as the most fitting persons for this duty. The Chris- 
tian emperors supported the system which they found in use. 
Constantine decreed that litigants might withdraw their 
causes from the civil tribunals, and refer them to the decisions 
of the Bishops, whose judgments should be of like force as if 
pronounced by the emperor ; and the governors of provinces 
were to aid in their execution. 1 

It is, however, understood, that the ratification, by the 
emperors, of the practice, was at first by treating the Bishops as 
arbiters merely, chosen with the consent of both parties. 
This was changed by an edict, attributed sometimes to Con- 
stantine, but more probably enacted by Theodosius. By this, 
all causes might be carried from the civil forum to the Bishop, 
at any period of the cause, and at the will of either party. 2 

1 About a. d. 359. 

2 The chief authority for the above statement, is the Tract of Van 
Espen, De Jur. Ecc. in Civilibus, pars, iii., tit. i. I have not been able 
to ascertain, from the sources within my power, the date of the edict 
of Theodosius. It was probably after 383, when Gratian died, and 
must have been before 395, the period of his own death. 

An edict of Charles the Great recognised this rescript in its full 
force; and thus the law seems to have existed, in France and adjoining 
countries, until about the 13th century. A compact of the French bar- 
ons to restrain this right, made in 1246, was followed by various edicts 
of the monarchs, especially by one of Charles V. in 1371, and by an 



ECCLESIASTICAL JURISDICTION. 469 

With regard to the controversies of clergymen, of what- 
ever nature, the law of the Church was announced at an early- 
period, with great decision. The council of Carthage decreed, 
that the clergy should be condemned by the synod, who dis- 
obeyed the authority of the Bishop in terminating their dis- 
putes. 1 

Yet ample as were the concessions of Christian emperors, 
to the exercise of an ecclesiastical power over all matters 
which concerned the members of the Church, the doctrine of 
an ultimate jurisdiction in themselves is exhibited at a very 
early period. The memorable act of Constantine, in restoring 

ordinance of 1486, in Flanders, until the jurisdiction was limited to the 
few cases, such as matrimonial causes, still within the control of eccle- 
siastical courts. 

There was an edict of Gratian, a.d. 376, declaring, that the customs 
which were in use in the civil judicatures should obtain in Church mat- 
ters, and that the final decision and determination of ecclesiastical 
causes should be made in their proper places, and by the synod of every 
diocese. (Apud Dawson Origo Legum, p. 67.) 

The 20th canon of Antioch provided for the meeting of synods of 
Bishops twice in every year, for the settlement of controversies; at 
which presbyters and deacons, and all who think they are any way ag- 
grieved, may come and obtain the judgment of the synod. 

1 By the 9th canon of the council of Chalcedon, (a.d. 451,) : ' if any 
clergyman have a suit against another clergyman, let him not leave 
his own Bishop, nor have recourse to the secular courts of justice; but 
let him first try the question before his own Bishop, or with the consent 
of the Bishop himself, before the persons whom both parties shall choose 
to have the hearing of the cause. But if any clergyman have a matter 
either against his own Bishop, or any other Bishop, let him be judged 
by the synod of the province. But if any Bishop or clergyman have 
a cause against the Bishop of the province himself, let him have recourse 
to the Exarch of the diocese, or to the throne of the imperial city of 
Constantinople, and plead his case before him." 

The Exarch was the patriarch of the diocese, and the Bishop of 
Constantinople, is designated by the other clause. — Beveridge. 

The 11th and 12th canons of the council of Antioch. a.d. 341, de- 
nounced any of the clergy who should go to the emperor without the 
consent, in writing, of the Bishops of the province, and especially the 
metropolitan. 



470 ECCLESIASTICAL JURISDICTION. 

Athanasius when deposed by the Arian Bishops, is a "proof of 
the most striking character. And the canons of Antioch 
themselves, while reprobating the practice of appeals, allow 
them to be made with the assent of the Bishops of the pro- 
vince and metropolitan ; and it is perfectly clear, that at a 
subsequent period, the Church was compelled, as the price of 
her predominance and endowments, to recognise the authority. 
The 123 Novel of Justinian, cap. 21, denned the extent of the 
jurisdiction, and specified the cases in which an appeal to the 
secular tribunals would lie, and the mode of making it. 1 

After this, the usurpation of the papal power, in claiming 
the right of appeal, introduced a new and influential element of 
discussion and strife. In resisting this, the independent Bishops 
and clergy of many kingdoms had a common cause with their 
princes, and in opposing the glaring and baneful encroach- 
ment of the popes, yielded more readily to a similar claim on 
the part of their own monarchs. 2 

The demands of the see of Rome extended not merely to 
the establishment of this right to entertain an appeal, but 
also to the entire control of all causes which concerned eccle- 

1 It was provided in this Novel — If any one shall have cause of com- 
plaint against any clergyman or monk, or deaconess, nun, or recluse, 
let himfirst go before the most holy Bishop, to whom each may submit. 
He will determine the casebetweent hem, and if both parties acquiesce 
in his decision, we command that it be executed (or perfected) by the 
local judge. 

But when sentence is pronounced by the Bishop, and either of the 
parties desires to contest it within ten days, the judge of the place shall 
examine the cause; and if he find it rightly decided, he shall confirm it 
by his own judgment, and see to its execution; and no second appeal 
shall lie. But if the sentence of the judge is contrary to that of the 
Bishop, then an appeal may be had from his decision, to be carried on 
according to the ordinary law. 

3 The discussion of Dupin upon the subject of these appeals, is the 
most full and satisfactory of any within the author's knowledge. (De 
An. Ecc. Disc. Diss. 2, p. 96, Paris, 1686.) His argument consists in an 
exposition of the 6th canon of Nice , a refutation of the Popish com- 
mentators upon it; the confirmation of his own argument in the decrees 



ECCLESIASTICAL JURISDICTION. 471 

siastics, whether of a spiritual or temporal nature ; and of all 
causes which concerned the laity connected with spiritual mat- 
ters. 

By a singular coincidence, the identical tenet of Rome 
upon this point was adopted by some of the leading churches 
of the Reformation. The subserviency of the civil to the spi- 
ritual power in all matters which concerned the members of 
the Church, no matter what was its nature, was a dogma of a 
prominent body of Protestants. The claim as cuslos utri- 
usque tabulce, was forced upon the Church by the emperors of 
the East, and the monarchs of England, in order to plant civil 
supremacy above the rights of religion ; and by popes and 
Grenevese divines, in order to rear a spiritual domination in all 
things temporal and divine. 

In our land, the evils of an undue assumption of power by 
the clergy in temporal matters, is a dream. ^ It is not so cer- 
tain that the temporal authority may not encroach upon the 
just offices and power of the spirituality. 

of subsequent councils; and a statement at large of other authorities 
and arguments. 

Van Espen also treats the subject very elaborately. See also Mo- 
UncEus, tome 4, p. 307. — Commentary upon the edict of Henry II. 

It is stated, that the first instance of such an appeal in England, 
was in the case of Wilfred, a Bishop, about the year 673. 

A canon for the division of sees, with the increase of Christians 
had been adopted at Hertford, through the influence of Theodore. For 
resisting the application of this canon, Wilfred had been deprived. In 
the presence of the King and Archbishop, then sitting in judgment, he 
announced publicly, that he appealed to the see of Rome for redress. 
" This appeared a thing so new and singular to the audience, that it 
occasioned a general laugh, as a thing qnite ridiculous." (Carte. Gen. 
Hist., 249, 250, and authorities.) 

But the perseverance of Popes, the infidelity of part of the clergy, 
and the necessities or weakness of Kings, at last established this right 
— not, however, without a strenuous resistance. The recognition of the 
authority was in the reign of Stephen. 

It was first checked by the constitutions of Clarendon, in the reign 
of Henry II., then the statutes of provisorsin the time of Edward III., 
and Richard II.; and received its death-blow in the 24th of Henry VIII. 



472 ECCLESIASTICAL JURISDICTION. 

It would be difficult upon this great subject — a subject 
which has been the mother of revolutions, and torn kingdoms 
to pieces — to find the law of right and truth better concentra- 
ted, than in the statute of 24th Henry VIII. " Causes spirit- 
ual must be judged by judges of the spirituality ; and causes 
temporal by temporal judges." 

It would extend this discussion too far, to enter upon the 
question of the original right of the monarchs of England to 
a final control of ecclesiastical causes. For a short period, the 
independence and liberty of the Anglican Church was sup- 
ported. The statute of 24 Henry VIII., cap. 12, § 8, gave 
an appeal from the archdeacon or his official to the Bishop ; 
from the Bishop or his commissary to the Archbishop ; from 
the archdeacon of an Archbishop to the Court of Arches ; and 
from this to the xA_rchbishop himself. If the cause had been 
commenced before the Archbishop himself, his decision was 
final ; and in cases in which the king was concerned, an ap- 
peal was to be taken to the spiritual prelates, and other abbots 
and friars of the upper House of Convocation. In all these 
cases, the determination was definitive and final, and in all by 
an ecclesiastical court. 

But this statute lasted in its full force only until the 25th 
year of Henry VIII. , when the act of submission of the clergy 
and restraint of appeals, gave the right of appeal to the king, 
in bis court of chancery, to be exercised by a commission to 
delegates, and the 6th section of the act vested in the king 
all the jurisdiction which the popes had ever claimed in the 
decision of causes. 

With the substitution of the judicial committee of the 
privy council for the delegates, the power has remained in full 
force to this day. 

The principle of supremacy which established this right of 
final determination, led to the supervision of the king's courts 
of law over the proceedings of ecclesiastical tribunals. Hence 



ECCLESIASTICAL SENTENCES. 1 473 

has arisen the formidable instrument of authority, the writ of 
prohibition, breaking in as often upon the legitimate domain 
of the ecclesiastical forum, as checking its unwarrantable en- 
croachments. 

But in our country, so happily has the power of the state 
moved in its separate and lawful sphere, and the discipline of 
churches been confined to their spiritual and peculiar office, 
that this writ has never, I believe, found a place in our pro- 
ceedings : and. moderation and good sense will avert the possi- 
bility of a collision. Our courts of justice act through the 
medium of a mandamus, or a bill and injunction in those cases 
in which the right to property and civil privileges is involved ; 
and in no others ; and sometimes they are called upon to de- 
termine the force of the sentences of Church judicatories, in 
settling such rights. 1 

This leads to the question — AYhat is the effect of a sen- 
tence of an ecclesiastical tribunal in the civil courts ? 

It is to be observed, that such a question can only arise 
where the decision is brought to bear upon right to property, 
or some civil privilege. 

In England, the rule is well settled, that such a sentence 
is binding and conclusive in ail courts where the subject mat- 
ter was within the jurisdiction of the court, and there was no 

1 Rushel rs. Winemiller . 4 Harris and McHenry ) 429 — Mandamus to 
show cause why Mr. Rushel should not be restored to the place and 
function of minister of the congregation of the German or High Dutch 
Reformed Church at Frederickstown, to the use of the church and the 
pulpit thereof, with all liberties to the same belonging. 

2 Burr. 1045 — c; Mandamus is the true remedy to restore a person 
wrongfully dispossessed of an office, or function, which draws after it 
temporal rights. 

" Every endowed minister, of any sect or denomination of Christians, 
who has been wrongfully dispossessed of his pulpit, is entitled to the 
writ of mandamus to be restored to his function, and the temporal 
rights with which it is endowed." 

In the case of The People vs. Steele. 2 Barbour, Sup. Court, Rep. 398, 
this subject was elaborately discussed. 



474 ECCLESIASTICAL SENTENCES. 

fraud or collusion in obtaining the decision. (Hatfield vs. Hat- 
field, 5 B, P. C. 100 ; Duchess of Kingston's case, 20 Howell's 
State Trials, 538 ; Houlditch vs. Lord Donegal, 8th Bligh, 
301 ; Medowcroft vs. Hugenin, 4 Moore, Pr., C. Rep., 393.) 
In the late case of Barry vs. Jackson, 1 Phillips' Rep. in 
Chancery, p. 582, the subject was gone into both before the 
vice-chancellor, and on appeal. The question was as to the 
effect of a sentence declaring certain persons to be the next of 
kin ; and it was held that the sentence was conclusive. The 
case of Bouchier vs. Taylor, in the House of Lords, in 1776, 
was greatly relied upon. 

The general rule in our own country may be stated thus : 
That sentences or judgments of a domestic or foreign tribunal 
are conclusive upon the point decided, unless they can be im- 
peached for fraud in obtaining them — for the want of jurisdic- 
tion in the court which pronounced them — or want of due 
notice to the party. What is due notice, is governed by the 
law of the forum, pronouncing the judgment ; whether it must 
be personal notice to appear, or any substitute, such as leav- 
ing it at the domicil of the party, or by prescribed advertise- 
ment. 1 

There are, however, several cases in our own country, in 
which the decisions of Church judicatories have come more im- 
mediately in question. 

And the case of Smith vs. Nelson, 18 Vermont Rep. 514, 
is first to be noticed, because, in the judgment of the author, 
and speaking with the greatest respect, it embodies principles 
hostile to the due enforcement of discipline in every Church, 
and tending to revive in a dangerous latitude, the supremacy 
of the civil tribunals over matters of a purely spiritual nature. 
The main points decided in the cause were these : 1st. Al- 
though religious denominations in the state may form consti- 

1 The law is nowhere better stated, than in Bime.hr vs. Dawson, 
4 Soammon's Rep. 536, (Illinois.) 



ECCLESIASTICAL SENTENCES. 475 

tutions, enact canons, laws, or ordinances, establish courts, or 
make decisions, yet they can have only a voluntary obedience ; 
cannot affect any civil rights, immunities, or contracts. Obe- 
dience to their requirements may be exacted under the penal- 
ty of spiritual censures ; but whether one submits to or defies 
their proceedings, depends on his conviction of their regularity 
or irregularity ; they can only affect his conscience ; how far 
they affect it, he must be the judge. 

2d. There cannot be claimed, in this country, for the deci- 
sions of a synod, or of any ecclesiastical judicatory, the same 
effect which is given to the decisions of ecclesiastical courts in 
England. 

3d. The proceedings of the synod of the associate Church, 
as a court of the last resort, are not to be held conclusive and 
absolute in this country, when they come in question directly 
or collaterally in courts of law ; but the regularity and effect 
of their proceedings may be examined and be determined in 
courts of justice, upon the same principles which subject the 
proceedings either of inferior courts, or voluntary associations, 
to inquiry and adjudication. 

The court then entered upon the question, deemed of great 
importance in the case, whether according to the rules or dis- 
cipline of the associate Church, the Rev. Mr. Pringle had been 
regularly and properly suspended and deposed from the minis- 
try. It is pronounced necessary to decide this question, in or- 
der to determine the cause. 

The court also proceeded to inquire into the validity of the 
suspension and deposition of the Rev. Dr. Bullions, a point 
also treated as arising in the case. 

The material ground on which the court proceeded in rela- 
tion to the Rev. Mr. Pringle, and the presbytery of Vermont, 
was, that the synod had no jurisdiction to dissolve a presby- 
tery at the time it did so. Nor if it had, could it delegate a 
power to do so, and to depose the ministers, as had been done 



476 ECCLESIASTICAL SENTENCES. 

in the case. It may be remarked that this is one of the cases- 
in which the sentence or judgment of any other tribunal is ex- 
aminable. 

But as regards the case of Dr. Bullions, the court proceed- 
ed to declare the illegality of his deposition, upon grounds 
every one of which it was entirely competent for the court be- 
low, and the appellate court, to have passed upon. Thus the 
most prominent of them all was, that a majority of presbyters 
who pronounced his sentence in the lower court, were the very 
persons for slandering whom, he was proceeded against. It 
appears distinctly, that Dr. Bullions took an appeal to the 
synod from the sentence pronounced against him, which appeal, 
however, was not duly prosecuted. The whole case on the 
merits was, however, afterwards brought before that court, by 
an arrangement of the parties, and the judgment below con- 
firmed. It is also clear that he could have taken advantage 
of every proper objection at that time. 

However repugnant it may be to our notions, that persons 
so situated should be judges, the only question was, Did 
the law of that Church sanction it ? And either the su- 
perior tribunal did sanction it, or the question could have been 
brought before and been settled by it. In either event, that 
was the court to adjudge it. 

Passing by all other points of irregularity in the proceed- 
ings, the one I have referred to, raises the question in its 
strongest form. 

The same proceedings, so far as they regarded the sentence 
against Dr. Bullions, were brought under review before Judge 
Willard of New- York, sitting as vice-chancellor, in 1844. 1 I 
have been favored with a copy of his opinion. The principles 
he adopts are thus clearly stated : — " It remains to inquire 
whether the deposition and excommunication of Dr. Bullions, 
by the presbytery of Cambridge, and the subsequent confirma- 

1 McGeogh vs. Bullions. The complainants were adherents of the asso- 
ciate Church. 



ECCLESIASTICAL SENTENCES. 477 

tion of the sentence by the associate synod, are conclusive 
upon the parties in this suit, or whether this court can look 
behind the sentence, and inquire into its legality." After dis- 
cussing this point, and citing some authorities, especially Dean 
vs. Bolton, afterwards noticed, he proceeds : — " This decision 
is right upon principle. A question arises in the administra- 
tion of a trust, whether Dr. Bullions was a minister in good 
standing in connection with the associate presbytery of Cam- 
bridge at a given time. How else can this be decided than by 
the record and proceedings of the presbytery itself ? If by 
them it appears that he has been deposed and excommunica- 
ted, it follows that he is no longer a member of that body. 
Whether he has been rightfully or wrongfully deposed, does 
not alter the fact that he has ceased to be a member of that 
presbytery. But lest I may be mistaken, in holding the sen- 
tence of the presbytery and synod conclusive, it is expedient 
to examine the grounds upon which the defendants seek to 
avoid its effect." 

The learned vice-chancellor proceeds in this examination, 
and, among other matters, discusses the declinature interposed 
by Dr. Bullions to the jurisdiction of the presbytery. This was, 
substantially, that the fragment remaining, after the exclusion 
of several members from their seats, could not constitute a 
legal body. It will be seen that this comprises the grounds so 
much relied upon the court in Vermont. The fact of this de- 
clinature being pronounced unwarrantable by the synod, when 
the case was brought before it, is there noticed ; and the deci- 
sion of that body on that point, declared conclusive. 

There was an appeal from the decree of the vice-chancel- 
lor, which was brought to hearing, before the present Supreme 
Court of the 4th circuit. Justice Willard, being one of the 
court, did not sit. By a majority of the court, the decree was 
modified, reversing that part which removed the trustees ; but 
as the author is informed by one of the judges, not affecting 
31 



478 ECCLESIASTICAL SENTENCES. 

the principles of the vice-chancellor. 1 Justice Cady delivered 
an opinion, sustaining the decree entirely. 

In support of the views taken by the vice-chancellor and 
Justice Cady, some other authorities may be referred to. In 
Dean vs. Bolton, 7 Halsted's Rep. 220, Ch. J. Ewing says : 
" At a meeting of the classis of Bergen, to which classis the 
congregation of English Neighbourhood belonged, the Rev. C. 
T. Demarest, then the minister of that congregation, was sus- 
pended from the office of the ministry. Was this suspension 
within the jurisdiction of the classis ? The jurisdiction I un- 
derstand to be expressly given by the 39th explanatory article. 
The shortness of the notice given to the minister to appear 
and defend himself, was the subject of some forcible remarks 
at the bar ; and when we recur to the deliberate procedure of 
courts of law, the time seems indeed to have been brief. I 
find, however, no rule prescribed in the constitution of the 
Church, and of course it is subject to the discretion of the 
classis. The sentence of suspension, then, appears to have 
been the judgment of a competent court, within its jurisdic- 
tion, having authority over the party and the subject, subject 
to an appeal to a higher tribunal by any one aggrieved — from 
which, however, no appeal was taken ; and to which, there- 
fore, we are bound, sitting in another judicatory, to give re- 
spect and effect, without inquiring into the truth or sufficiency 
of the alleged grounds of the sentence." 

So in the case of The German Reformed Church vs. Set- 
berty 3 Barrs' Penn. Rep. 290, the relator in mandamus had 
been refused admission as a voter, because he was no longer a 
member, having been excommunicated. Rogers, Justice, said 
— " The consistory, it seems, excommunicated the relator, and 
he contends that they have the only power of excluding from 

1 The author has not seen the opinion of Judge Hand ; but it has been 
stated, by Judge Paige, that the above is its result. The vice-chancel- 
lor speaks of the defendants having acted conscientiously. 



ECCLESIASTICAL SENTENCES. 479 

the Lord's Table ; and where it is intended to separate a mem- 
ber from the Church, the consent of the congregation is requi- 
site. And this seems to be the import of the fifth and sixth 
articles of the Church Discipline. Now whether this assent 
was given, does not expressly appear ; but granting that it 
was without consent, the remedy was by appeal to a higher 
tribunal." He points out the course of an appeal as provided 
in the system of that Church ; and adds — " The decisions of 
ecclesiastical courts, like every other judicial tribunal, are 
final ; as they are the best judges of what constitutes an of- 
fence against the word of God, and the discipline of the 
Church. Any other than those courts must be incompetent 
judges of matters of faith, doctrine and discipline ; and civil 
courts, if they should be so unwise as to attempt to revise 
their judgment on matters within their jurisdiction, would in- 
volve themselves in a sea of uncertainty and doubt, which 
would do any thing but improve religion or morals. There 
is no ground for a mandamus until the decision of the highest 
court is made." 

In Harmon "vs. Desher, Court of Appeals, South Carolina, 
1 Spears' Eq. Rep. 90, (1843.) — for various reasons, after 
various proceedings, the synod of the Lutheran Church of 
South Carolina had expelled Mr. Desher from their body. The 
court say — " He stands therefore convicted of the offences al- 
leged against him by the sentence of the spiritual body of which 
he was a voluntary member, and whose proceedings he had 
bound himself to abide by. It belongs not to a civil power, to 
enter into or review the proceedings of a spiritual court. The 
structure of our government has, for the preservation of civil 
liberty, rescued the temporal institutions from religious inter- 
ference. On the other hand, it has secured religious liberty 
from the invasion of the civil authority. The judgments, 
therefore, of religious associations, bearing upon their own 
members, are not examinable here." 



480 ECCLESIASTICAL SENTENCES. 

These decisive authorities, emanating from distinguished 
judges, will, it is hoped, place this subject on its true founda- 
tion. Let the sentences of Church judicatories be clothed 
with the same authority that is accorded to the judgment of 
all established courts, and with no more. Scrutinise the exist- 
ence of their jurisdiction, as to the party and the cause ; de- 
mand that due notice shall have been given, and in a mode 
not alien to civil regulations ; and watch that the judgment 
is unstained with collusion or fraud. On what possible 
ground of analogy, justice, argument, or Christian duty, can 
the civil tribunals require more ? If they do, and sanction 
the investigation of every point involved — of law, or of fact — 
of form, or of merits — they will shake the foundation of gov- 
ernment in every Church ; w T ill bring disrepute upon the ad- 
ministration of its laws ; and do dishonor to religion itself. The 
ecclesiastical jurisdiction, in its legitimate sphere, that is, over 
ecclesiastical matters, must be upheld, or Christianity will be- 
come torpid. Let us not be affrighted from the support of dis* 
cipline, because of the harsh excesses with which it has some- 
times been enforced. It is not made the less essential, because 
bigots and tyrants have employed the sword or the flames in 
its execution. A Church without discipline, must become, if 
it be not already, a Church without religion. Some coercive 
and excluding power is indispensable, wherever faith in its 
integrity, or life in its purity, would be vindicated or sustained. 



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